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1993
On Misreading John Bingham and the Fourteenth
Amendment
Richard L. Aynes
University of Akron Main Campus
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Aynes, Richard L., "On Misreading John Bingham and the Fourteenth Amendment" (1993). The 39th Congress
Project. 2.
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Reprinted by permission of The Yale Law Journal Company, Inc., from
The Yale Law Journal, Vol. 103, pp. 57.
Articles
On Misreading John Bingham and the
Fourteenth Amendment
Richard L. Aynest
CONTENTS
I.
ADAMSON, FAIRMAN, AND THE REPUDIATION OF INCORPORATION ..........
II. WHO WAS CONFUSED?
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. How "SINGULAR" WERE BINGHAM'S VIEWS? . . . . . .
A. Antislavery Constitutionalism ...............................
. . . . . . . . . . . . . . . . .
63
66
74
74
B.
Politicaland PopularPerspectives ...........................
78
C.
Legal Theorists ........................................
83
1. Judge Farrar....................................... 83
2.
Judge Paschal ......................................
85
3.
4.
Dean Pomeroy ......................................
Justice Cooley ......................................
89
91
IV. LOCAL CONFLiCrS WITH THE BILL OF RIGHTS ......................
94
t Associate Dean and Professor of Law, University of Akron School of Law. Special acknowledgment
is made to Julie Jones, Linda Stiefel, and Linda Stravalaci who, as research assistants through a David L.
Brennan Research Fellowship and the University of Akron School of Law Dean's Office, assisted with the
research for this article. Akhil R. Amar, Michael Les Benedict, Michael K. Curtis, Paul Finkelman, Harold
M. Hyman, Wilson R. Huhn, Hon. Louis F. Oberdorfer, and William D. Rich were kind enough to critique
prior drafts of this Article.
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V.
The Yale Law Journal
[Vol. 103: 57
INITIAL JUDICIAL INTERPRETATIONS ..............................
96
VI. CONCLUSION ..............................................
103
Nearly fifty years ago, Professor Charles Fairman published his seminal
article, Does the Fourteenth Amendment Incorporate the Bill of Rights?'
According to Fairman, it does not.2 Fairman's analysis of the congressional
debates and other historical data on the Fourteenth Amendment led him to
conclude that the Privileges or Immunities Clause of the Amendment does not
make the Bill of Rights applicable to the states. Instead, Fairman argued that
the intent of the Amendment's framers is most nearly realized by the use of
the Due Process Clause to enforce against the states only those rights
"'implicit in the concept of ordered liberty." 3 Fairman reached this conclusion
only by dismissing as unreliable numerous statements by Congressman John
Bingham, the principal author of Section One of the Fourteenth Amendment.
Bingham had repeatedly stated his belief that the Fourteenth Amendment
would enforce the Bill of Rights against the states. 4 Fairman argued that
Bingham's position was muddled, inconsistent and idiosyncratic.
Scholars came to view Fairman's work as the "classic" '6 interpretation on
this subject and, in the forty-four years since its first publication, his analysis
has "shaped much of the constitutional field."7 Many prominent writers
adopted Fairman's interpretation of the incorporation debate,8 often sharing his
1. Charles Fairman, Does the FourteenthAmendment Incorporate the Bill ofRights?, 2 STAN. L. REV.
5 (1949).
2. Id. at 138.
3. Id. at 139 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
4. See CONG. GLOBE, 42d Cong., 1st Sess. app. at 84 (Mar. 31, 1871); CONG. GLOBE, 39th Cong., 2d
Sess. 811 (Jan. 28, 1867); CONG. GLOBE, 39th Cong., 1st Sess. 2541-42 (May 10, 1866); Id. at 1291-92
(Mar. 9, 1866); Id. at 1089-90 (Feb. 28, 1866); Id. at 1034 (Feb. 26, 1866).
5. Fairman, supra note 1, at 25-26. A generation later, Fairman reiterated his views on the
incorporation controversy in his history of the Supreme Court under Chief Justice Chase. CHARLES
FAIRMAN, RECONSTRUCTION AND REUNION, 1864-1888, PART I (1971) [hereinafter FAIRMAN,
RECONSTRUCTION I] in 6 HISTORY OF THE SUPREME COURT OF THE UNITED STATES (Paul A. Freund ed.,
1971); CHARLES FAIRMAN, RECONSTRUCTION AND REUNION, 1864-1888, PART II (1987) [hereinafter
FAIRMAN, RECONSTRUCTION II] in 7 HISTORY OF THE SUPREME COURT OF THE UNITED STATES (Paul A.
Freund & Stanley N. Katz eds., 1987). In this later work, Fairman did not offer any significant new
information, but bolstered his 1949 analysis by highlighting different state and federal practices and
criticizing those who minimized these differences. FAIRMAN, RECONSTRUCTION I, supra, at 1292-93 n.275.
6. William E. Nelson, History and Neutrality in ConstitutionalAdjudication, 72 VA. L. REV. 1237,
1253 (1986).
7. Harold M. Hyman, Federalism:Legal Fiction and HistoricalArtifact?, 1987 B.Y.U. L. REV. 905,
924 (1987).
8. See, e.g., RAOUL BERGER, GOVERNMENT BY JUDICIARY 134-56 (1978) (noting author's agreement
with Fairman's analysis that Fourteenth Amendment's framers did not intend to apply Bill of Rights against
states); Alexander M. Bickel, The OriginalUnderstandingand the SegregationDecision, 69 HARV. L. REV.
1, 5 n.13 (1955) ("Professor Fairman demonstrated that the argument [in favor of incorporation] was based
on a misreading and an incomplete reading of the original understanding [of the Fourteenth Amendment].");
see also JACOBUS TENBROEK, EQUAL UNDER LAW 214, 345 (1951) (citing Fairman in bibliography and
concluding that Bingham's Bill of Rights consisted of Article IV, Section 2; Fifth Amendment Due Process;
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On Misreading John Bingham
assessment of Bingham's abilities.9 Indeed, Fairman's article has been one of
the most cited law review articles written since World War ]I.
Still, Fairman has not been without detractors. William Crosskey was, for
many years, the most prominent critic of Fairman's work. Crosskey reviewed
the same historical record as Fairman, but drew quite different conclusions. He
described Bingham as an able person whose theories were "the common faith"
of the Republican Party and argued that the historical evidence reveals that the
framers of the Fourteenth Amendment intended the Amendment to enforce the
Bill of Rights against the states.11
Despite Crosskey's analysis and exhaustive research, his critique did little
to diminish acceptance of Fairman's work, perhaps because of Crosskey's
unconventional ideas in other areas of constitutional law.' 2 For instance,
Justice Felix Frankfurter, whose 1947 disagreement with Justice Black in
Adamson v. California3 prompted Fairman's original project, 14 never
acknowledged Crosskey's criticisms of Fairman. More than a decade after
Adamson, Justice Frankfurter remained convinced that Fairman's analysis was
correct and described his proof as "conclusive."' 15 As late as 1968, the
exchange between Professors Fairman and Crosskey remained "the only fulldress discussion of [the incorporation debate] in legal periodicals" and was "far
and the right to equal protection).
9. See, e.g., John P. Frank & Robert F. Munro, The Original Understandingof "Equal Protectionof
the Laws," 50 COLUM. L. REV. 131, 164-65 n.169 (1950) (Bingham had "a strong egocentricity and a touch
of the windbag. As a legal thinker he was not in the same class with the top notch minds of his time.").
10. Fred R. Shapiro, The Most-Cited Law Review Articles, 73 CAL. L. REV. 1540, 1550 (1985).
11. William W. Crosskey, CharlesFairman,"Legislative History," and the ConstitutionalLimitations
on State Authority, 22 U. CHI. L. REV. 1 (1954). The exchange began Crosskey and Fairman began the
preceding year when Crosskey first criticized Fairman's 1949 article. WILLIAM v. CROSSKEY, POLITICS
AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 1171,
1381 n.11 (1953). Fairman
responded with a harshly critical review of Crosskey's book. Fairman's primary purpose was to defend the
Supreme Court's reasoning in the pre-Fourteenth Amendment case, Barron v. Baltimore, 32 U.S. (7 Pet.)
243 (1833), and to discredit Crosskey's criticism of it. See Charles Fairman, The Supreme Court and the
Constitutional Limitations on State Governmental Authority, 21 U. CHI. L. REV. 40 (1953). Crosskey
responded by reiterating his views why Barron had been incorrectly decided and setting forth the reasons
why Justice Black had interpreted the Fourteenth Amendment correctly in Adamson v. California, 332 U.S.
46 (1947). Crosskey, supra. Fairman's response reiterated his arguments concerning Barron and his 1949
analysis of the Fourteenth AmendmenL Charles Fairman, A Reply to Professor Crosskey, 22 U. CHI. L.
REV. 144 (1954). Fairman's 1949 article and Crosskey's 1954 article set forth the substantive differences
between the two scholars' views on the purpose of the Fourteenth Amendment.
12. Crosskey argued that many of the Supreme Court's most important constitutional decisions were
incorrect, that the Constitution was designed to create a strong central government, and that the
congressional commerce power was intended to include both interstate and intrastate commerce. See
CROSSKEY, supra note 11. For a modem summary of this work, see Paul Finkelman, Book Review: The
First American Constitutions: State and Federal,59 TEX. L. REV. 1141, 1156-73 (1981) and Robert C.
Power, Book Review: The Textualist, A Review of the Constitution of 1787: A Commentary, 84 Nv. U. L.
REV. 711, 713-16 (1990).
13. 332 U.S. 46, 59-68 (1947) (Frankfurter, J., concurring); 332 U.S. at 68-92 (Black, J., dissenting).
14. See infra note 44 and accompanying text.
15. Bartkus v. Illinois, 359 U.S. 121, 124 (1959).
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than any of the United States Supreme Court cases on
more comprehensive
16
this point."
7
A decade later, Raoul Berger published Government by Judiciary.
Although much of Berger's book questioned the legitimacy of the Supreme
Court's decisions in Brown v. Board of Education18 and Baker v. Carr,9
Berger also discussed whether the Fourteenth Amendment should be construed
to enforce the Bill of Rights against the states.2" Relying on Fairman's
analysis as well as his own reading of the original sources, Berger concluded
that Bingham was a "muddled" thinker2' whose views should be discounted,
and agreed with Fairman that the framers of the Fourteenth Amendment did
not intend it to enforce the Bill of Rights against the states.22 Unlike Fairman,
however, Berger rejected even selective incorporation, arguing that the
Amendment's framers did not intend that any of the first eight amendments3
should be made applicable to the states through the Fourteenth Amendment.2
In 1980, Michael Kent Curtis responded to Berger's analysis in the first
24
round of what was to become an extended exchange between the two.
Curtis criticized both Fairman's and Berger's scholarship. He found Bingham's
constitutional theory understandable, and, like Crosskey, concluded that the
Fourteenth Amendment applied the Bill of Rights against the states.'
16. Alfred Avins, Incorporation of the Bill of Rights: The Crosskey-Fairman Debates Revisited, 6
HARV. J. ON LEGIS. 1, 3 (1968). Avins concluded that the Fourteenth Amendment's framers intended to
apply the first eight amendments of the Constitution to the states. ld. at 25. Avins independently examined
the speeches of congressmen who thought the Bill of Rights applied to the states, and concluded that
Crosskey, rather than Fairman, had reached the correct conclusion. Id. at II. Avins, however, concluded
that Bingham's views on Article IV, Section 2 were not widely shared. Id. While this conclusion is
mistaken, see infra Part III, Avins correctly identified Bingham's belief that the Fourteenth Amendment
enforced the Bill of Rights against the states as the predominant view. Id. at 26.
See also Leonard Levy's introduction to a collection of materials on the incorporation debate coauthored by Fairman, CHARLES FAIRMAN & STANLEY MORRISON, THE FOURTEENTH AMENDMENT AND THE
BILL OF RIGHTS: THE INCORPORATION THEORY, at xiv (1970). While acknowledging some strengths of
Fairman's analysis, Levy pointed to several weaknesses. Levy noted that Fairman limited his study of
background history to the post-1865 period, provided essentially negative evidence, and interpreted the
Amendment's terms literally, ignoring the contextual meaning of the language within abolitionist
constitutional theory. Ld.
17. BERGER, supra note 8.
18. 347 U.S. 483 (1954).
19. 369 U.S. 186 (1962).
20. BERGER, supra note 8, at 134-56.
21. Id. at 145 (citation omitted).
22. Id. at 156 n.95.
23. Id. at 115-19.
24. Michael K. Curtis, The Bill of Rights as a Limitation on State Authority: A Reply to Professor
Berger 16 WAKE FOREST L. REV. 45 (1980). Raoul Berger and Michael Curtis emerged as the two major
modem participants in the debate over the application of the Bill of Rights through the Fourteenth
Amendment. See Stephen J. Wermiel, Rights in the Modern Era:Applying the Bill of Rights to the States,
1 WM. & MARY BILL RTs. J. 121, 128 (1992).
Ultimately both Curtis and Berger synthesized their views into books. RAOUL BERGER, THE
FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1989); MICHAEL K. CURTIS, No STATE SHALL
ABRIDGE (1986).
25. CURTIS, supra note 24, at 215-20. Most recently, Akhil Amar described as "astonishing" Fairman's
and Berger's arguments that Bingham "didn't mean what he said" when he invoked the Bill of Rights.
Akhil R. Amar, The Bill of Rights andthe FourteenthAmendment, 101 YALE L.J. 1193, 1235 (1992). Amar
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61
Despite the quality of Curtis' work, his impact on legal scholarship in this
area has been limited.26 Some scholars have made positive assessments of
Bingham's abilities,27 but others continue to adhere to Fairman's
characterization of Bingham as inept and unintelligible.2 8 Fairman's
view-that Bingham was a confused man and that his views provide no
guidance when attempting to interpret the Fourteenth Amendment-continues
to pervade legal scholarship.
This view and the analysis that supports it are wrong. Building on the
work of Crosskey, Curtis, and Alfred Avins,29 this Article seeks to strengthen
the argument that the Fourteenth Amendment applies the first eight
amendments to the states. In particular, this Article focuses on the ideas and
influence of John Bingham, the Amendment's principal author. It identifies
several sources, some not previously discussed in the literature on this subject,
which demonstrate that Bingham intended the Fourteenth Amendment to
enforce the Bill of Rights against the states and that many of his
contemporaries shared his belief regarding the Amendment's purpose. This
Article also argues that Fairman misread critical sources, relied on information
taken out of context, ignored important contemporary materials, and buttressed
his argument with a flawed legal theory. As a result, this Article argues,
Fairman's portrait of John Bingham is distorted and unfaithful to the historical
evidence.
Part I of this Article describes the 1947 dispute between Justice Felix
Frankfurter and Justice Hugo Black over incorporation and summarizes
argued that Fairman unfairly judged the evidence supporting incorporation. Although Amar did not find
support in the historical record for what he termed "mechanical incorporation"--the literal application of
the first eight amendments to the states-he nevertheless concluded that, under a doctrine he labelled
"refined incorporation," those portions of the first eight amendments that protect personal rights should be
enforced against the states. Id.at 1262-68, 1284.
26. For example, two years after the publication of Curtis' No State Shall Abridge, William Nelson,
who was familiar with Curtis' work, nevertheless referred to Fairman's 1949 work as a leading article.
Nelson, supra note 6, at 1253. Laurence Tribe lists both Fairman's 1949 article and Fairman's 1971
book-but none of Curtis' writings-in the table of authorities of his constitutional law treatise. LAURENCE
H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1731 (2d ed. 1988); see also GEOFFREY R. STONE E" AL.,
CONSTITUTIONAL LAW 1684, 1686 (2d ed. 1991). But see JOHN E. NOWAK & RONALD D. ROTUNDA,
CONSTrrIONAL LAW 332 n.3 (4th ed. 1991) (citing both Fairman and Curtis).
27. ALAN G. BOGUE, THE CONGRESSMAN'S CIVIL WAR 34 (1989) (noting that Bingham was
"recognized as a man of outstanding abilities"); DAVID DONALD, THE POLITIcs OF RECONSTRUCTION,
1863-1867, at 46 (1965) (describing Bingham as the "most thoughtful exponent of the Moderate position
in the House"); HOWARD GRAHAM, EVERYMAN'S CONSTITUTION 162 (1968) ("Bingham's constitutional
theory was more highly developed than that of many of his colleagues" during the 1850's.); STANLEY I.
KUrLER, JUDICIAL POWER AND RECONSTRUCTION POLrIcS 18 (1968) (describing Bingham as "aprominent
and responsible party spokesman on constitutional and legal questions").
28. John Harrison, Reconstructing the Privilegesor Immunities Clause, 101 YALE L.J. 1385, 1404 n.
61 (1992) ("Bingham's speeches were highly rhetorical, and his thoughts are hard to follow; he was
undoubtedly a gasbag. 'Whether he was also a gashead is a more difficult and controversial question. My
view is that either Bingham's analytical powers were mediocre or he was too lazy to use them."); Raoul
Berger, Incorporationof the Bill of Rights: A Response to Michael Zuckert, 26 GA. L. REV. 1, 4 (1991)
(quoting with approval negative assessments of Bingham's reasoning abilities).
29. Avins, supra note 16.
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Fairman's subsequent analysis of the purpose of the Fourteenth Amendment
with respect to the Bill of Rights. Part II criticizes Fairman's portrait of
Bingham as "befuddled" and unreliable, arguing that a comprehensive and fair
reading of the historical evidence shows that Bingham consistently espoused
a cogent theory about the purpose of the Fourteenth Amendment, and that
Fairman, not Bingham, was confused about the Amendment's purpose. Part IlB
refutes Fairman's claim that Bingham's views were "singular," and shows that,
contrary to Fairman's assertions, many of Bingham's contemporaries shared
his beliefs. Prior to the Civil War, proponents of antislavery constitutionalism
supported legal arguments which coincided with elements of Bingham's
constitutional theory. Between 1864 and 1871, congressional leaders, jurists,
the Ohio Republican Party, the voters of Ohio, and nationally recognized
authors of three major legal treatises all endorsed positions consistent with
Bingham's constitutional theory. A fourth treatise, cited by Fairman to indicate
the "singularity" of Bingham's views, does not, in fact, provide contemporary
support for Fairman's argument.
Part IV addresses Fairman's most credible argument. Fairman noted that
during the period of the Amendment's ratification, jury practices of many
states did not comply with the requirements of the Fifth, Sixth and Seventh
Amendments. Fairman argued that had state representatives understood the
Fourteenth Amendment to enforce the Bill of Rights against the states, they
would not have voted to ratify the Amendment without first discussing the
need to change provisions in their own constitutions and statutes that conflicted
with the Bill of Rights. Part IV concludes, however, that the conflicts Fairman
identified lack the interpretive power he attributed to them because, as
Fairman's own examples indicate, many supporters of the Fourteenth
Amendment were either unaware of or unconcerned with these conflicts. Part
V documents the consistency between Bingham's views and the earliest federal
cases interpreting the Fourteenth Amendment. It demonstrates that subsequent
decisions such as the Slaughter-House Cases0 and United States v.
Cruikshank repudiate rather than express the intent of the framers of the
Fourteenth Amendment.
Part VI concludes that Bingham's views on the Fourteenth Amendment
should be credited and Fairman's scholarship on this subject disregarded. This
Part sketches the application of Bingham's views to the current constitutional
landscape and notes changes in incorporation doctrine that logically follow.
Finally, it outlines the challenge to originalist thinkers to determine how the
Supreme Court can properly determine which privileges or immunities, beyond
the Bill of Rights, the Fourteenth Amendment protects.
30. 83 U.S. (16 Wall.) 36 (1872).
31. 92 U.S. 543 (1876).
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On Misreading John Bingham
I. ADAMSON, FAIRMAN, AND THE REPUDIATION OF INCORPORATION
In Adamson v. California,32 the Supreme Court considered whether the
Fourteenth Amendment barred state constitutional and statutory provisions
permitting a prosecutor or the court to comment on a defendant's failure to
testify. The Court assumed without deciding that the state laws at issue would
infringe on a defendant's Fifth Amendment privilege against self-incrimination
"if this were a trial in a court of the United States." 33 But Justice Stanley F.
Reed, writing for the majority, concluded that "[i]t is settled law" that the Fifth
Amendment privilege does not protect an individual from state, as opposed to
federal, action.34
Adamson is best remembered for the dispute between Justices Frankfurter
and Black concerning just how "settled" was the law on which the majority
relied. Justice Black reviewed "the historical events that culminated in the
Fourteenth Amendment" and concluded that the Amendment's framers
intended to apply the Bill of Rights to the states. Justice Black relied
primarily on the views of John Bingham and quoted a number of the speeches
Bingham had made during the pendency of the Fourteenth Amendment. These
speeches indicate that Bingham sought a constitutional amendment to overrule
Barron v. Baltimore,36 which had held that the Bill of Rights could not be
enforced against the states.37 Justice Black noted that because Bingham
believed that the privileges and immunities of U.S. citizens were "chiefly
defined in the first eight amendments to the Constitution of the United
32. 332 U.S. 46 (1947).
33. Id. at 50.
34. Id. at 50-51. Nearly twenty years later, the Court decided that its holding in Adamson had been
incorrect. See Griffin v. California, 380 U.S. 609 (1965). While the Court expressly overruled Adamson,
it held the Fourteenth Amendment's Due Process Clause, not its Privileges or Immunities Clause,
encompassed the Fifth Amendment's protection against self-incrimination.
35. Adamson, 332 U.S. at 71-72 (Black, J., dissenting). Justice Black insisted that the Court had never
thoroughly considered the "relevant historical evidence" concerning the intent of the Fourteenth
Amendment's framers, and attached to his opinion an appendix summarizing the Amendment's history. Id.
at 92-123 app. Accounting for thirty-two pages of the official report of Adamson, this appendix quotes from
the congressional debates relevant to the adoption of the Fourteenth Amendment. Twenty-one of these
pages contain excerpts from speeches by John Bingham in which he argued for the application of the Bill
of Rights to the states through the proposed amendment. Id. at 93, 94-98, 100-02, 103, 107, 111-20 app.
Justice Black viewed Bingham's contributions as critical and based much of his position in Adamson on
his understanding of Bingham's views. According to Justice Black, "Congressman Bingham may, without
extravagance, be called the Madison of the first section of the Fourteenth Amendment." Id. at 73-74.
A half century earlier, Wall Street lawyer William D. Guthrie relied on some of the same legislative
history used by Justice Black to conclude that Congress had intended the Fourteenth Amendment to make
the Bill of Rights applicable to the states. WIr-LiAM D. GUTHRIE, LECTURES ON THE FOURTEENTH ARTICLE
OF AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES 58-59 (1898). In 1908, Horace Flack
evaluated accounts in selected contemporary newspapers regarding the Amendment's purpose and reached
the same conclusion as Guthrie. HORACE E. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT 94
(1908). Justice Black cited both Flack and Guthrie with approval. Adamson, 332 U.S. at 72 n.5, 73-74.
36. 32 U.S. (7 Pet.) 243 (1833).
37. Adamson, 332 U.S. at 95-96, 100 app.
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States, 38 Bingham must have meant for the Fourteenth Amendment to
enforce the Bill of Rights against the states.39
Justice Black found Bingham's speeches compelling evidence that the
Fourteenth Amendment framers intended to apply the Bill of Rights against the
states. Justice Frankfurter, however, was not convinced. Concurring with the
Adamson majority, Justice Frankfurter dismissed statements by Bingham and
other legislators and argued that judicial opinions contemporaneous with or just
subsequent to ratification more reliably indicated the meaning of the
Amendment than "[r]emarks of a particular proponent of the Amendment, no
matter how influential."4 According to Frankfurter, decisions such as the
Slaughter-House Cases4 ' demonstrated conclusively that the Privileges or
Immunities Clause of the Fourteenth Amendment did not incorporate the Bill
of Rights. These decisions coincided with Frankfurter's view of the
Amendment and his understanding of history. He noted that half the states that
ratified the Fourteenth Amendment did not require grand juries at the time.
Thus, the Justice concluded, the states could not have anticipated that the new
Amendment required the practice as one of the privileges or immunities
protected from abridgment.42 Frankfurter thus "put to one side the Privileges
or Immunities Clause," noting "the mischievous uses to which that clause
would lend itself if its scope were not confined to that given it by ... the
Slaughter-House Cases."4 3
Because Justice Frankfurter did not view statements by the Fourteenth
Amendment's framers as useful interpretive tools, he declined to consider
directly the evidence cited by Justice Black. Two years after the Court's
decision in Adamson, Frankfurter's former student, Charles Fairman, addressed
the evidence his mentor had never fully confronted. 44 In his article, Does the
Fourteenth Amendment Incorporate the Bill of Rights?, Fairman directly
38. Id. at 115 app. Justice Black noted that Senator Jacob Howard held similar views. When
introducing the Amendment in the Senate, Howard indicated that the privileges and immunities of U.S.
citizens included "the personal rights guarantied [sic] and secured by the first eight amendments of the
Constitution." Id. at 105 app.
39. Id. at 95, 96, 100-02 app.
40. Adamson, 332 U.S. at 64 (Frankfurter, J., concurring).
41. 83 U.S. (16 Wall.) 36 (1872).
42. Adamson, 332 U.S. at 61-62.
43. ld. Having concluded that the Privileges or Immunities Clause of the Fourteenth Amendment did
not include the protections of the Bill of Rights, Frankfurter considered the case under the Due Process
Clause alone. Id. Relying heavily on precedent, Justice Frankfurter concluded that the Fifth Amendment
privilege against self-incrimination was not a fundamental element of due process. As a result, he concluded
that the Constitution presented no limitation on the state laws at issue and that the proceedings below did
not "offend those canons of decency and fairness which express the notions of justice of English-speaking
peoples." Id. at 67.
44. Fairman, supra note I, at 5. While pursuing his S.J.D. at Harvard Law School, Fairman had been
a student in Frankfurter's course on federal jurisdiction. Letter from Annie C. Bombard, Registrar, Harvard
Law School, to author (Jan. 19, 1993) (on file with author). In the preface of his biography of Justice
Miller, Fairman thanked Frankfurter for his "encouragement and stimulation in the execution" of the writing
of the book. CHARLES FAIRMAN, MR. JUSTICE MILLER AND THE SUPREME COURT 1862-1890, at vi (1939).
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confronted Justice Black's historical evidence, devoting sixty-three pages of his
article to the congressional debates leading to the adoption of the Fourteenth
Amendment.4 5 Ultimately, he concluded that the debates offered no guidance
as to the meaning of the Amendment's Privileges or Immunities Clause
because, he argued, no consensus existed among the members of Congress
about the meaning of the terms. Fairman wrote, "The debates never established
what was to be the basis or 46measure of the privileges and immunities of
citizens of the United States.
In evaluating the evidence cited by Justice Black, Fairman acknowledged
that Bingham was a "key figure" whose views were of "great significance" to
a study of the meaning of the Fourteenth Amendment. 47 But unlike Justice
Black, Fairman read the historical evidence to indicate that Bingham's views
were idiosyncratic, that his statements in Congress were confused, and that his
contemporaries did not view him as a logical, careful thinker. In short, Fairman
characterized Bingham as "befuddled."48 According to Fairman, Justice
Black's reliance on Bingham's statements was misplaced.
Like Justice Frankfurter, Fairman argued that Congress could not have
intended to adopt the Amendment as interpreted by Bingham, because to have
done so would have rendered unconstitutional many then-existing state statutes
and constitutional provisions. Fairman noted, "The freedom that the states
traditionally have exercised to develop their own systems for administering
justice, repels any thought that the federal provisions on grand jury, criminal
jury, and civil jury were fastened upon them in 1868."' 9 Three decades after
the publication of his 1949 article, Fairman returned to the subject of
incorporation and, in a lengthy footnote in his 1971 volume Reconstruction
and Reunion, affirmed his prior analysis.50 Relying on his earlier reading of
45. Fairman, supra note 1, at 6-68.
46. IL at 138. Because Fairman concluded that the meaning of the Privileges or Immunities Clause
was indeterminate, he argued that the Clause should be interpreted according to the standard articulated
under the Due Process Clause. Fairman noted, "Justice Cardozo's gloss on the due process clause-what
is 'implicit in the concept of ordered liberty'--comes as close as one can to catching the vague aspirations
that were hung upon the privileges and immunities clause." Id. at 139 (footnote omitted). Although Fairman
never fully explained the basis for this conclusion, it appears that he came to this view because he found
numerous examples of the Fourteenth Amendment's framers' intent to protect freedom of speech through
the Fourteenth Amendment. Id If freedom of speech was a privilege or immunity under the Fourteenth
Amendment because it was part of the First Amendment, a principled basis would be lacking to explain
why only a portion of that Amendment and not others could be enforced against the states. But if the
"ordered liberty" formula applied, the Court could enforce that portion of the First Amendment against the
states and not necessarily have to enforce other portions of the First Amendment or the provisions of other
amendments.
47. Id. at 25.
48. Id. at 26.
49. Id. at 137.
50. FAIRMAN, RECONSTRUCTION I, supra note 5, at 1292-93 n. 275. Fairman's 1971 volume sets forth
the history of the Supreme Court under Chief Justice Chase. Unlike his 1949 article, the 1971 volume was
not directed primarily toward resolving the incorporation dispute. In an early review of Reconstruction and
Reunion, 1864-1888, Part I, Michael Les Benedict noted that Fairman's "main purpose in these pages is
to impart information, not to present conclusions." Michael Les Benedict, Fairman,History of the Supreme
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Bingham's speeches, Fairman wrote that Bingham was "confused"'" and held
"peculiar conceptions. 52 According to Fairman, Bingham was "not a man of
exact knowledge or clear conceptions or accurate language,"5'3 but rather was
54
"distinguished for elocution but not for hard thinking."
In sum, Fairman argued that the Fourteenth Amendment did not apply the
Bill of Rights against the states. He reached this conclusion largely because he
gave little credence to the views of John Bingham.
II.
WHO WAS CONFUSED?
According to Fairman, Bingham never clearly articulated what rights he
believed were protected by the Privileges and Immunities Clause of Article IV,
Court of the United States: Volume VI, Reconstruction and Reunion, 1864-88, Part One, 39 U. CHI. L.
REV. 862, 864 (1972) (book review). Still, Benedict chided Fairman for failing to meet the obligations of
the legal historian. He noted, "it should not be the responsibility of the lay reader to pore over the author's
assembled data and then draw his own conclusions. He is entitled to know Professor Fairman's opinions
as a scholar and to a clear explanation of how the evidence sustains them." Id. at 863-64. Accord Gerald
Casper, Review: Charles Fairman,History of the Supreme Court of the United States: Reconstruction and
Reunion, 1864-1888, Part One, 73 COLUM. L. REV. 913, 915 (1973) (book review).
The 1971 volume reveals a change in Fairman's perspective with respect to the use of contemporary
sources to evaluate the Fourteenth Amendment. In 1949, Fairman placed a high value on present
knowledge: "We know so much more about the constitutional law of the Fourteenth Amendment than the
men who adopted it." Fairman, supra note 1, at 9. By 1971, however, in evaluating the Slaughter-House
Cases, Fairman depreciated "latter-day wisdom," and noted,
it will be rewarding for a while to sweep all this aside, to view the matter simply as it appeared to
the participants .... If [the Justices] show no cognizance of purposes that have since been attributed
to the men who carried the Amendment into the Constitution, we should take heed and proceed with
caution.
FAIRMAN, RECONSTRUCTION I, supra note 5, at 1343-44.
51. FAIRMAN, RECONSTRUCTION I, supra note 5, at 1288.
52. Id. at 461.
53. Id. at 462.
54. FAIRMAN, RECONSTRUCTION II, supra note 5, at 133. This assessment likely reflects Fairman's
effort to integrate positive statements about Bingham's abilities by Representative and Senator James Blaine
and Representative, Senator, and Secretary of the Treasury John Sherman. FAIRMAN, RECONSTRUCTION I,
supra note 5, at 1270 (Blaine called Bingham "an effective debater, well informed, ready and versatile";
Sherman described Bingham as one of the "most eloquent" members of the House who "took a leading part
in all the debates."). By distinguishing oratory abilities from analytic ones, Fairman sought to credit Blaine
and Sherman without discrediting his own evaluation of Bingham. This distinction, however, is artificial
and misrepresents the nature of Blaine's and Sherman's praise. Albert Riddle, writing in 1880 but drawing
on his experience in Congress between 1861 and 1863, indicated that the Congress was "not a great
admirer of eloquence" and that "the mere maker of speeches, is the most useless of men." ALBERT G.
RIDDLE, THE LIFE, CHARACTER AND PUBLIC SERVICE OF JAS. A. GARFIELD 83 (1880). Contrary to
Fairman's suggestion, Sherman and Blaine would not have praised Bingham if he had been a "mere maker
of speeches."
Moreover, historical evidence reveals that many of Bingham's contemporaries praised his intellectual
abilities. See LINUS P. BROCKETr, MEN OF OUR DAY 475 (1868) (indicating that Bingham was regarded
as an able lawyer and was especially skilled in cross-examining witnesses); GLYNDOM HOWARD [LAURA
SEARING], NOTABLE MEN INTHE 'HOUSE' 69, 70 (1862) (indicating that Bingham was often spoken of as
"the ablest man of the House" of Representatives and that he was a "clear and able" lawyer (emphasis in
original)); ALBERT G. RIDDLE, RECOLLECTIONS OF WAR TIMES 115 (1895) (recalling Bingham as "one of
our most effective speakers" who the Republicans "usually" put forward as their "champion" in the House
of Representatives); WALTER G. SHOTwELL, THE LIFE OF CHARLES SUMNER 597 (1910) (describing
Bingham "as a brilliant and effective orator" whose fame "was as wide as his country").
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Section 2 nor did he explain consistently what rights he believed the Privileges
or Immunities Clause of the Fourteenth Amendment would guarantee. While
acknowledging that Bingham said he wanted to enforce the "Bill of Rights"
against the states, Fairman argued that Bingham used the term "Bill of Rights"
not to encompass the provisions of the first eight amendments, but rather to
identify the provisions of the Fifth Amendment and Article IV's Privileges and
Immunities Clause. This Section argues that Fairman inaccurately portrayed
Bingham and distorted his constitutional theory.
Fairman derived the theory he ascribed to Bingham by ignoring the bulk
of Bingham's speeches and the context these provide. Instead, Fairman focused
on a single speech that Bingham gave before the House of Representatives on
February 26, 1866. 55 This speech was the shortest of all Bingham's speeches
on the Fourteenth Amendment, barely filling one and one-half columns of the
Congressional Globe. 6
In this address, Bingham introduced an early version of the new
Amendment which would have altered the Constitution to give Congress the
power "to secure to the citizens of each State all privileges and immunities of
citizens in the several States, and to all persons in the several States equal
protection in the rights of life, liberty, and property., 57 Bingham explained
the purpose of the Amendment: "[T]hese great provisions of the Constitution,
this immortal bill of rights embodied in the Constitution, rested for its
execution and enforcement hitherto upon the fidelity of the States."5'
Fairman summarized the content of the proposal, cited Bingham's concerns
that Congress had no power to enforce "this immortal bill of rights," and
quoted the first portion of Bingham's speech cited above. 59 Fairman next
provided his interpretation:
Consider Bingham's expression, "these great provisions of the
Constitution, this immortal bill of rights embodied in the
Constitution." What is the antecedent? Evidently, the "privileges and
immunities" (Art. IV, § 2), and the rights of "life, liberty, and
property" of the Fifth Amendment-these comprise "the immortal bill
of rights." In this spacious gesture Bingham certainly does not seem
to be making any particular reference to Amendments I to VIII. Let
us take note that, on this occasion at any rate, "the immortal bill of
rights" is to Bingham a fine literary phrase not referring precisely to
the first eight Amendments.60
55.
56.
57.
58.
59.
60.
Fairman, supra note 1, at 25-26.
CONG. GLOBE, 39th Cong., 1st Sess. 1034 (Feb. 26, 1866).
Id.
Id.
Fairman, supra note 1, at 25.
Id. at 26.
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Fairman insisted that Bingham's reference to "this immortal bill of rights"
did not refer to the first eight amendments. 61 Rather, Fairman suggested,
Bingham used the term "immortal bill of rights" to refer to the proposed
amendment's protection of a citizen's privileges and immunities and to its
protection of the rights to life, liberty and property. The implication is that by
using the term immortal bill of rights to encompass both privileges and
immunities and life, liberty and property, Bingham indicated that he viewed
the protection of life, liberty and property as separate and distinct from the
protection of a citizen's privileges and immunities and could not have believed
the former to be a component of the latter. And if a citizen's privileges and
immunities did not include elements of the Fifth Amendment-the protection
of life, liberty and property-it follows that Bingham could not have believed
the first eight amendments defined the content of a citizen's privileges and
immunities. 62 As a result, Fairman insisted, Bingham's reference to "this
immortal bill of rights" did not refer to the first eight amendments, but rather
to two specific provisions of the Constitution. It was this unconventional usage
of the term "Bill of Rights" which, in part, led Fairman to conclude Bingham's
beliefs were idiosyncratic.6 3
Yet, a more reasonable interpretation of Bingham's February 26 speech
exists. An examination of the language of the proposed Amendment shows
that its "privileges and immunities" clause would apply only to citizens,
whereas its "life, liberty, and property" clause would apply more expansively
to "all persons." 64 It is logical to read the new amendment's protection of life,
liberty, and property as representing one privilege and immunity of
citizenship-and one worthy of extension equally, not only among citizens but
61. Fairman's reading, in part, depends on Bingham's use of the word "this" rather than "the"
preceding the words "bill of rights." By using "this," Bingham may have meant the Bill of.Rights as
applied by Article IV, Section 2 and including Fifth Amendment protections. See infra note 71 and
accompanying text. It may be that Bingham misspoke or the Congressional Globe erred in its transcription
of the speech. Perhaps, as Crosskey has suggested, Bingham held a copy of the Constitution and was
gesturing with it when he uttered the word "this.' Crosskey, supra note 11, at 28. Whatever the case, an
examination of Bingham's speeches on the Fourteenth Amendment in addition to his February 28, 1866,
speech in particular, suggests that Fairman's reading is incorrect.
62. Fairman himself believed that Article IV, Section 2's protection of privileges and immunities could
not encompass the first eight amendments. He argued that Article IV could not have included the provisions
of the Bill of Rights since the Bill of Rights was adopted after the adoption of Article IV. Fairman, supra
note 1, at 61-62. Problems with this argument are threefold. First, the relevant question to determine intent
is what the framers of the Fourteenth Amendment believed and intended, not whether their intent was based
on a historically correct view of the Constitution. Second, if, as some scholars believe, the Bill of Rights
is declaratory, affirming preexisting rights, rather than setting forth new ones, see Amar, supra note 25, at
1205-12, the protections contained in the Bill of Rights could have been privileges and immunities
notwithstanding the later adoption of the Bill of Rights. Third, even if, prior to the adoption of the Bill of
Rights, Article IV had been confined to privileges and immunities such as the writ of habeas corpus, the
adoption of the guarantees in the Bill of Rights arguably expanded the content of federal privileges and
immunities. For arguments to this effect, see CONG. GLOBE, 42d Cong., 1st Sess. 475 (Apr. 5, 1871)
(Speech of Massachusetts Rep. Henry Dawes); Crosskey, supra note 11, at 83.
63. Fairman, supra note 1, at 26.
64. CONG. GLOBE, 39th Cong., 1st Sess. 1034 (Feb. 26, 1866).
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to "all persons in the several States., 65 According to this interpretation,
Bingham believed that the content of "this immortal bill of rights"
corresponded in content to that of a citizen's privileges and immunities. As the
following discussion will show, Bingham believed that both consisted, in
significant part, of the first eight amendments.
Bingham's numerous congressional speeches support this second view as
the only reasonable interpretation of his February 26 speech. In fact, a
comprehensive reading of the historical evidence reveals that Bingham
consistently espoused a cogent theory of the content of protected privileges and
immunities and the purposes of the Fourteenth Amendment. Bingham's overall
theory consisted of four component theories which, for present purposes, will
be identified as the66 national citizenship, Bill of Rights, compact, and
enforcement theories.
The national citizenship theory, the first component of Bingham's
constitutional theory, holds that the Privileges and Immunities Clause of
Article IV, Section 2 protects rights of national rather than state citizenship.
In numerous speeches before, during, and after ratification of the Fourteenth
Amendment, Bingham argued in support of this theory. In 1859, for example,
Bingham opposed the admission of Oregon to the Union because, he argued,
while the new state ostensibly would be "free," its constitution excluded
African Americans from entering and denied access to the state courts to those
who did. 67 Bingham argued that these provisions in the Oregon Constitution
violated the Privileges and Immunities Clause of Article IV, Section 2. He
explained that the privileges and immunities protected by Article IV, Section
2 belonged to citizens "in" the several states, and not to citizens "of' the
several states. 68 Bingham's analysis suggests that the second time Article IV,
Section 2 refers to the term "citizens," the term may refer to citizens either "of
states" or "of the United States." Bingham believed that, properly interpreted,
the Clause would read: "The citizens of each State shall be entitled to all
65. Id.
66. Much of the substance of Bingham's views can be found in the transcripts of public statements
he made on the floor of Congress. Bingham's hometown newspaper, the CadizRepublican, reprinted many
of his speeches; others were bound in pamphlet form for mass distribution. Since these speeches were
intended for circulation among constituents as well, they "provide clues to the sentiments of [those]
constituents." KENNETH M. STAMP, AMERICA IN1857, at viii (1990).
Order Sheets for two of Bingham's speeches suggest that his speeches were widely circulated. See
Order sheets, John Bingham Collection, W. Reserve Historical Society, Cleveland, Ohio. There were 6650
reprints of Bingham's January 16, 1867, speech on Reconstruction. Bingham ordered 2000 copies, and 27
others, including Schuyler Colfax and Nathaniel P. Banks, ordered the remaining 4650 copies. Bingham
did not order any copies of his closing argument in the Johnson impeachment trial, but 13 other people
ordered a total of 2250 copies. Id. See also T. HARRY WILLIAMS, LINCOLN AND THE RADICALS 235 (1965)
on the effectiveness of franked political pamphlets.
67. CONG. GLOBE, 35th Cong., 2d Sess. 984 (Feb. 11, 1859). See also Speech of Hon. John A.
Bingham on the Oregon Bill, CADIZ REPUBLICAN, Mar. 2, 1859, at 1.
68. CONG. GLOBE, 35th Cong., 2d Sess. 984 (Feb. 11, 1859).
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privileges and immunities of citizens [of the United States] in the several
States."'6 9
The consequences of this reading are important. The alternative reading
that the terms "of citizens" means "of state citizens" renders Article IV,
Section 2 a variant equal protection clause, simply requiring a state to treat
equally its own citizens and the citizens of other states within its borders. By
contrast, if the reference is to "citizens of the United States," then the
provision implies the existence of substantive national rights which states may
not deny. Bingham articulated the latter interpretation of Article IV, Section
2 in seven additional congressional speeches between 1861 and 1868."0
The Bill of Rights theory, the second component of Bingham's
constitutional theory, argues that the privileges and immunities of U.S. citizens
include, at a minimum, the provisions of the Bill of Rights.7' While Bingham
often referred to certain of these provisions individually,72 he believed that
69. Id. Contra Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 527 (1857) (Catron, J.).
70. CONG. GLOBE, 39th Cong., 2d Sess. 450 (January 14, 1867) (paraphrasing Article IV, Section 2
and stating "' ... all privileges and immunities of citizens' [of the United States] (supplying the ellipsis)
'in the several States."') (bracketed and parenthetical language in original); CONG. GLOBE, 39th Cong., Ist
Sess. 2542 (May 10, 1866) ("No States ever had the right.., to abridge the privileges or immunities of
any citizen of the Republic."); CONG. GLOBE, 39th Cong., Ist Sess. 1089 (Feb. 28, 1866) (suggesting that
there is no authority supporting the contention "that any State has the right to deny to a citizen of any other
State any of the privileges or immunities of a citizen of the United States."); CONG. GLOBE, 39th Cong.,
1st Sess. 158 (Jan. 9, 1866) ("This guarantee is of the privileges and immunities of citizens of the United
States in, not of, the several States."); CONG. GLOBE, 37th Cong., 2d Sess. 1639 (Apr. I1, 1862) ("The
great privilege and immunity of an American citizen"); CONG. GLOBE, 36th Cong., 2d Sess. app. at 80-84
(Jan. 22, 1861) (referring to "the privileges and immunities of American citizens in the several states"); see
also Speech of Hon. Jno. A. Bingham, CADMZ REPUBLICAN, Jan. 24, 1866, at I (reprinting Bingham's
January 9, 1866, congressional speech). After ratification of the Fourteenth Amendment, Bingham, referring
back to the admission of Missouri to the Union, insisted that the new state not violate the Privileges and
Immunities Clause of Article IV. Bingham stated that Congress required that Missouri's constitution never
"deprive any citizen of the United States of the rights and privileges of a citizen of the UnitedStates within
the limits of that State." (emphasis added). He stated that the Fourteenth Amendment "secures this power
to the Congress of the United States." CONG. GLOBE, 40th Cong., 2d Sess. 2462-63 (1868). But see 3 STAT.
645 (1821) (indicating that Bingham's recollection of Congress' wording in the 1821 statute admitting
Missouri to the union was incorrect).
In 1871, Bingham recalled the Constitution "as it was" prior to the Fourteenth Amendment and
indicated that states did not have the right to enact laws "which abridged the privileges or immunities of
the citizens of the United States, as guaranteed by the Constitution of the United States." Speech of Hon.
John A. Bingham at Belpre, Ohio, September 14, 1871, CADIz REPUBLICAN, Sept. 28, 187 1, at 1 (emphasis
added).
71. Crosskey, supra note I1, at 27-28; CUtrs, supra note 24, at 58-71.
72. For instance, in 1862 Bingham stated, "The great privilege and immunity of... American
citizen[s] to be respected everywhere in this land.., is that they shall not be deprived of life, liberty, or
property without due process of law." CONG. GLOBE, 37th Cong., 2d Sess. 1639 (1862). On other occasions
Bingham suggested that among the privileges and immunities protected by Article IV, Section 2 were the
rights to freedom of speech, press, conscience, assembly, trial by jury, and the right to bear arms. Speech
of Hon. John A. Bingham at Belpre, Ohio, September 14, 1871, supra note 70, at I. He also included the
rights protected under the Seventh Amendment, CONG. GLOBE, 39th Cong. 1st Sess., 1089-90 (Feb. 28,
1866), and the Eighth Amendment. CONG. GLOBE, 39th Cong., 2d Sess. 811 (Jan. 28, 1867). In 1866,
Bingham spoke of the violation of "guarantied [sic] privileges of citizens of the United States" and included
the infliction of "'cruel and unusual punishments' under state law as "[c]ontrary to the express letter of
your Constitution." CONG. GLOBE, 39th Cong., 1st Sess. 2542 (May 10, 1866). In January, 1867, Bingham
identified the Fifth Amendment Just Compensation Clause and the provisions of the Eighth Amendment
as "personal rights," CONG. GLOBE, 39th Cong., 2d Sess. 811 (Jan. 28, 1867), and looked to the ratification
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the privileges and immunities of national citizenship encompassed all the
provisions of the first eight amendments. As he stated in 1871, "[T]he
privileges and immunities of citizens of the United States, as
contradistinguished from citizens of a State, are chiefly defined in the first
73
eight amendments to the Constitution of the United States.
The third component of Bingham's constitutional theory, the compact
theory, holds that even before the adoption of the Fourteenth Amendment, the
Constitution prohibited states from abridging the first eight amendments.
According to Bingham, Article IV,Section 2 applied the provisions of the Bill
of Rights against the states, but the absence of an express clause granting
Congress enforcement authority meant that while a compact existed that bound
the states to comply with Section Two, no remedy was available when the
states breached this obligation. For instance, in 1866, Bingham insisted that the
states had no right to "abridge the privileges or immunities of any citizen of
repercussion, since Congress
the Republic," and yet they had done so without
74
action.
such
prevent
to
authority
lacked the
Fairman correctly noted that Bingham believed that Article IV, Section 2
barred the states from abridging the privileges and immunities guaranteed by
the Section, and that Congress had no enforcement authority.75 Yet since
Fairman misunderstood Bingham's national citizenship and Bill of Rights
theories, Fairman minimized the importance of the compact theory. Fairman
did not acknowledge that, under the compact theory, the Constitution imposed
on the states an unenforceable obligation to guarantee, at a minimum, the first
eight amendments.
The final component of Bingham's constitutional theory, the enforcement
theory, holds that the Fourteenth Amendment provides the enforcement power
absent from Article IV, Section 2. Bingham, in his speeches preceding, during,
and after the Amendment's ratification, consistently and repeatedly stated that
the new Amendment's purpose was to enforce the Bill of Rights against the
states.
On January 25, 1866, two years before the adoption of the Fourteenth
Amendment, Bingham made clear his belief that the federal government should
be empowered to enforce the Bill of Rights against the states. Bingham spoke
in general terms about what was to become the Fourteenth Amendment, then
pending before the Joint Committee on Reconstruction.76 He said it was a
of the Fourteenth Amendment to enforce "all the limitations for personal protection of every article and
section of the Constitution." Id.
73. CONG. GLOBE, 42d Cong., IstSess. app. at 84 (Mar. 31, 1871) (emphasis added). In Adamson,
Justice Black recognized that Bingham believed that the first eight amendments to the Constitution "chiefiy
defined" the privileges and immunities of U.S. citizenship. 332 U.S. at 115 app. (Black, J., dissenting). See
supra notes 35-39 and accompanying text.
74. CONG. GLOBE, 39th Cong., 1st Sess. 2542 (May 10, 1866).
75, Fairman, supra note 1, at 25-26.
76. CONG. GLOBE, 39th Cong., 1st Sess. 429 (Jan. 25, 1866).
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"general" amendment which would give Congress the express power to enforce
"the rights which were guarantied [sic] ...from the beginning, but which
guarantee has unhappily been disregarded by more than one State of this
Union ....simply because of a want of power in Congress to enforce that
guarantee.
77
One month later Bingham said that the Fourteenth Amendment would
"arm the Congress... with the power to enforce the bill of rights as it stands
in the Constitution today. ' 78 Bingham specifically stated that the Fourteenth
Amendment was needed to overcome the effects of Barron v. Baltimore79 and
Livingston v. Moore,80 which had held, respectively, that the Fifth and
Seventh Amendments did not limit the states.8 Bingham stated, "Gentlemen
admit the force of the provisions in the bill of rights, that the citizens of the
United States shall be entitled to all the privileges and immunities of citizens
of the United States in the several States. 82 Bingham said that Barron v.
Baltimore "makes plain the necessity of adopting this amendment., 83 The
pamphlet version of Bingham's speech on the floor of Congress was subtitled
a speech "in support of the proposed amendment to enforce the bill of
rights. 8 4
On March 9, 1866, Bingham voiced his opposition to the pending Civil
Rights Bill. Bingham stated that "the enforcement of the bill of rights is the
want of the Republic. 8 5 Bingham and James Wilson debated whether
Congress already had the authority to pass legislation enforcing the Bill of
Rights or whether, as Bingham believed, a constitutional amendment was
necessary.8 6 Bingham said that he wanted the federal Bill of Rights "enforced
everywhere" and that this goal could be accomplished only by a constitutional
amendment.87 He said that he advocated an amendment "which would arm
Congress with the power to compel obedience to the oath, and punish all
77.
78.
79.
80.
81.
82.
83.
Id.
CONG. GLOBE, 39th Cong., 1st Sess. 1088 (Feb. 28, 1866).
32 U.S. (7 Pet.) 243 (1833).
32 U.S. (7 Pet.) 469 (1833).
CONG. GLOBE, 39th Cong., 1st Sess. 1089-90 (Feb. 28, 1866).
Id. at 1089 (emphasis added).
Id.
84. JOHN A. BINGHAM, ONE COUNTRY, ONE CONSTITUTION, AND ONE PEOPLE. SPEECH OF HON. JOHN
A. BINGHAM, OF OHIO, IN THE HOUSE OF REPRESENTATIVES, FEB. 28, 1866, IN SUPPORT OF THE PROPOSED
AMENDMENT TO ENFORCE THE BILL OF RIGHTS (Washington, Printed at the Congressional globe [sic]
office, 1866) (on file at Library of Congress). The New York Times reported a summary of Bingham's
February 28, 1866, speech and noted Bingham's belief regarding the purpose of the proposed Amendment.
"This was simply a proposition to arm the Congress of the United States... with power to enforce the Bill
of Rights as it stood in the Constitution." N.Y. TIMES, Mar. 1, 1866, at 5.
85. CONG. GLOBE, 39th Cong., 1st Sess. 1291 (Mar. 9, 1866). This speech was summarized and
distributed in pamphlet form. See The Civil Rights Bill, N.Y. TIMES, Mar. 10, 1866, at 1. Ohio
Representative Lawrence noted that Bingham's March 9 speech had been "extensively published." CONG.
GLOBE, 39th Cong., 1st Sess. 1837 (Apr. 7, 1866).
86. See The Civil Rights Bill, supra note 85, at 1.
87. CONG. GLOBE, 39th Cong., IstSess. 1291 (Mar. 9, 1866).
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violations by State officers of the bill of rights, but leaving those officers to
discharge the duties enjoined upon them as citizens of the United States by that
oath and by that Constitution."88
On May 10, 1866, Bingham gave the last major speech in the House of
Representatives in favor of the adoption of the Fourteenth Amendment. 9
While he directed much of his speech toward the apportionment provisions of
Section Two and the disenfranchisement provisions of Section Three,9 ° his
remarks concerning Section One reiterated his conviction that the Amendment
would enforce the Bill of Rights against the states. He explained that the
Amendment provided:
by express authority of the Constitution to do that by congressional
enactment which hitherto they have not had the power to do, and have
never even attempted to do; that is, to protect by national law the
privileges and immunities of all the citizens of the Republic and the
inborn rights of every person within its jurisdiction whenever the
same shall be abridged or denied by the unconstitutional acts of any
State. 9'
By using the word "abridge," Bingham suggested that the Amendment would
not create new privileges or immunities. 92 Rather, its purpose was to protect,
by creating an enforcement power, existing privileges and immunities.
After the ratification of the Fourteenth Amendment, Bingham, speaking on
behalf of a majority of the House Judiciary Committee, summarized his
constitutional theory:
The fourteenth amendment, it is believed, did not add to the privileges
or immunities before mentioned, but was deemed necessary for their
enforcement as an express limitation upon the powers of the States.
It had been judicially determined that the first eight articles of
amendment of the Constitution were not limitations on the power of
the States, and it was apprehended that the same might be held of the
provision of the second section, fourth article. 93
88. Id. at 1292 (emphasis added). Though this speech was made in the House, the Senate was aware
that Bingham had authored Section One of the Fourteenth Amendment and that he had expressed the desire
to enforce the Bill of Rights against the states in his speech on the Civil Rights Bill. See Amar, supra note
25, at 1238 n.200. Thus, even before Senator Howard's May 23, 1866, speech introducing the Amendment,
the Senate knew that Bingham intended the Fourteenth Amendment to enforce the Bill of Rights against
the states. See also CONG. GLoBE, 42d Cong., 1st Sess. app. at 256 (Apr. 13, 1871) (Sen. Henry Wilson
concurring with Bingham's view of the Fourteenth Amendment and referring to Bingham as Amendment's
author).
89. CONG. GLOBE, 39th Cong., 1st Sess. 2541 (May 10, 1866).
90. Id. at 2541-42.
91. Id. at 2542.
92. See also Amar, supra note 25, at 1219-20.
93. H.R. REP. No. 22, 41st Cong., 3d Sess. (Jan. 30, 1871), reprinted in THE RECONSTRUCION
AMENDMENTS' DEBATES 466-67 (Alfred Avins ed., 1967). Bingham did not refer to specific "judicial[]
determinlations]" but was undoubtedly referring to Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), and
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In March, 1871, Bingham stated explicitly that the Fourteenth Amendment was
designed to apply the Bill of Rights to the states. Noting that the first eight
amendments "chiefly defined" the privileges and immunities of U.S.
citizenship, Bingham stated, "These eight articles I have shown never were
limitations upon the power of the States, until made so by the fourteenth
amendment."'94
Taken together, this textual and contextual review shows that Bingham
held a clear constitutional theory and that he intended to use the Privileges or
Immunities Clause of the Fourteenth Amendment to enforce the Bill of Rights
against the states. Fairman reached the opposite conclusion only by narrowly
focusing on and misreading Bingham's February 26, 1866, speech and ignoring
the context provided by Bingham's other relevant speeches.
II. How "SINGULAR" WERE BINGHAM'S VIEWS?
Fairman argued that Bingham's understanding of the Fourteenth
Amendment was not only confused but also "novel. 95 According to Fairman,
"[a] careful reader will have remarked that [Bingham] held a singularopinion
on the constitutional problem." 96 In 1971 Fairman described Bingham as
having a "peculiar mode of thought.
97
However, the historical evidence reveals that Bingham's views of the
Constitution and the Fourteenth Amendment were not idiosyncratic. Elements
of his national citizenship, Bill of Rights, compact, and enforcement theories
can be found in traditional antislavery theory,9' and in the opinions of wellknown lawyers, judges, and political leaders. During speeches on the floor of
the House and Senate, several congressional leaders espoused positions
consistent with Bingham's theories. The authors of three contemporary legal
treatises each shared Bingham's view concerning the purpose of the Fourteenth
Amendment.
A. Antislavery Constitutionalism
Many antislavery activists shared Bingham's national citizenship, Bill of
Rights, and compact Theories. A major tenet of antislavery constitutionalism
held that the guarantees of the Bill of Rights were among Article IV's
privileges and immunities and that all the provisions of Article IV, except the
Livingston v. Moore, 32 U.S. (7 Pet.) 469 (1833). In his February 28, 1866, speech, Bingham cited these
cases when asserting the same position. See CONG. GLOBE, 39th Cong., 1st Sess. 1089-90 (Feb. 28, 1866).
94. CONG. GLOBE, 42d Cong., 1st Sess. app. at 84 (Mar. 31, 1871).
95. Fairman, supra note 1, at 26.
96. Id. at 25 (emphasis added).
97. FAIRMAN, RECONSTRUCTION I, supra note 5, at 1270.
98. For an acdount of Bingham's antislavery background, see generally Richard L. Aynes, The
Antislavery and Abolitionist Background of John A. Bingham, 37 CATH. U. L. REv. 881 (1988).
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Full Faith and Credit Clause, were part of a compact with the states.
According to this theory, the Constitution commanded state adherence to these
provisions even though Congress lacked the power to enforce these rights
against state infringement. 99
Commentators advanced this theory as early as 1834, and lawyers and
judges on both sides of the debate presented arguments in the decades that
followed.Itu For example, New Jersey Supreme Court Chief Justice Joseph
C. Hornblower adopted this view in State v. Sheriff of Burlington in 1836.0'
Salmon P. Chase and James G. Birney in Ohio advanced the same argument
in the Matilda case 0 2 and in State v. Hoppess.10 3 Chase refined it before
the U.S. Supreme Court in Jones v. Van Zandt.l'4
In his 1859 argument before the Ohio Supreme Court in Ex parte
Bushnell,' Ohio Attorney General Christopher P. Wolcott presented the
most sophisticated version of the theory that Congress lacked power to enforce
Article IV's Privileges and Immunities Clause. 1°6 Attorney General Wolcott
discussed the history and origins of Article IV and concluded that the Fugitive
99. Howard J. Graham, The EarlyAntislavery Backgrounds of the FourteenthAmendment, 1950 WIs.
L. REV. 479, 493.
100. TENBROEK, supra note 8, at 61-62 n.6.
101. The New Jersey Supreme Court heard State v. Sheriff of Burlington in 1836. Petitioners sought
the return of an alleged fugitive slave residing in New Jersey. Chief Justice Homblower's opinion
considered the constitutionality of the federal fugitive slave law of 1793 and suggested that the federal
government could enforce no part of Article IV other than the Full Faith and Credit Clause. He nevertheless
decided in favor of the alleged fugitive, basing his decision on New Jersey's 1826 fugitive slave law. See
OPINION OF CHIEF JUSTICE HORNBLOWER ON THE FUGITIVE SLAVE LAW, reprintedin 1 FUGITIVE SLAVES
AND AMERICAN COURTS 99-103, in 2 SLAVERY RACE AND THE AMERICAN LEGAL SYSTEM 1700-1872
(Paul Finkelman ed., 1988); see also Paul Finkelman, State ConstitutionalProtections of Liberty and the
Antebellum New Jersey Supreme Court: ChiefJustice Hornblowerand the Fugitive Slave Law, 23 RUTGERS
LJ.753, 768-74 (1992).
102. This case was not reported. Chase's argument is summarized in PAUL FINKELMAN, SLAVERY IN
THE COURTROOM 31-32 (1985) and HAROLD H. HYMAN & WILLIAM M. WIECEK, EQUAL JUSTICE UNDER
LAW 107 (1982). Chase later suggested that he had independently reached the same conclusions as did
Chief Justice Homblower in Sheriff of Burlington, but that his confidence in this view had been "greatly
strengthened" by seeing a "brief' newspaper account of the decision. Letter from Salmon P.Chase to Chief
Justice R.S. Field (Apr. 9, 1865), in ROBERT B. VARDEN, AN ACCOUNT OF THE PRIVATE LIFE AND PUBLIC
SERVICES OF SALMON P. CHASE 637 (1874).
103. 2 W.LJ. 279, 289 (Ohio 1845).
104. Jones v. Van Zandt, 46 U.S. (5 How.) 215 (1847), Chase's argument was published in pamphlet
form and is summarized in 4 W.LJ. 321-328 (1846).
105. 9 Ohio St. 77 (1859).
106. Id. at 97-181. Bingham and Chase were longtime allies in Ohio Republican politics, see, e.g.,
Letter from John A. Bingham to Salmon P. Chase (May 11, 1858) (Chase Manuscript Collection, Library
of Congress) (indicating support of Chase for President), and Bingham very likely knew Wolcott. Wolcott
studied law in the offices of Edwin Stanton and later served as his Assistant Secretary of War. I BENCH
AND BAR OF OHIO 417-18 (George I. Reed ed., 1897). In 1856, Governor Salmon P. Chase appointed
Wolcott Attorney General of Ohio. Wolcott was subsequently elected and served two terms. I THE
HISTORY OF THE REPUBLICAN PARTY IN OHIO 65, 67, 84 (John. P. Smith ed., 1898) [hereinafter
REPUBLICAN PARMY OF OHIO]. Wolcott was a delegate to the first National Republican Convention in 1856,
id. at 53, and one of the four people Chase named to represent his interests at the 1860 National Republican
Convention. DONNAL V. SMrrH, CHASE AND CIVIL WAR POLITICS 13, 72, 80-83 (1931). During the Civil
War, Wolcott served as Judge Advocate General for Ohio's militia. ROWLAND H. RERICK, STATE
CENTENNIAL HISTORY OF OHIO 318 (1902).
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Slave Clause was "one of compact merely '' t°" because no express provision
delegated enforcement authority to Congress.'0 8 He called the Clause part of
a compact because its "execution ... rests with the states alone."'0 9
Wolcott pointed out that, by contrast, the Constitution included a
congressional enforcement power for the Full Faith and Credit Clause."'
Wolcott argued that this specific grant of power to Congress demonstrated that
when the framers intended Congress to have a given power, they granted the
power expressly. In his view, the lack of express power to enforce the other
provisions of Article IV meant no such power existed."' As a result,
Congress could not compel states to return fugitive slaves. Though the threeperson majority in Bushnell did not adopt Wolcott's argument, Wolcott's
reasoning won the votes of dissenting Judges Brinkerhoff and Sutliff."2
Thus, antislavery constitutional theory held that the absence of specific
provisions giving the federal government the power to enforce the Privileges
and Immunities Clause, the Fugitive Slave Clause, and the Fugitive from
Justice Clause meant that those clauses set forth duties enjoined on the states
but unenforceable by the federal government. Certainly, this view was not
undisputed. The Supreme Court rejected it with respect to the Fugitive Slave
Clause in Prigg v. Pennsylvania."3 But antislavery lawyers like Chase,
107. 9 Ohio St. at 122-23.
108. Some modem commentators have also referred to the provisions of Article IV as "a collection
of compactlike clauses." See, e.g., HYMAN & WIECEK, supra note 102, at 151.
109. 9 Ohio St. at 113-15.
110. "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial
Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which
such Acts, Records and Proceedings shall be proved, and the Effect thereof." U.S. CONST. art. IV, § 1.
111. 9 Ohio St. at 133-34; see KERMIT L. HALL ET AL., AMERICAN LEGAL HISTORY 201 (1991) ("The
fugitive slave clause's wording and its placement of Article IV, § 2, of the Constitution suggest that the
Framers did not anticipate a federal law to enforce it."); see also James B. White, Constructing a
Constitution: OriginalIntention in the Slave Cases, 47 MD. L. REV. 239, 245 n.13 (1988) (acknowledging
that absence of express enforcement provisions in Sections Two and Four of Article IV "might reasonably
be read as significant omission[]").
112. 9 Ohio St. at 225-27 (Brinkerhoff, J., dissenting), 234-36 (Sutliff, J., dissenting). Judge
Brinkerhoff concluded that most of Article Iv's provisions were "mere articles of compact between the
states" and that they did not give Congress "any power whatsoever" to enforce those provisions. Id. at 225.
Similarly, Judge Sutliff adopted Wolcott's argument that only the states had the authority to enforce the
Fugitive Slave Clause. Id. at 234-36. To show the impropriety of federal enforcement, Sutliff indicated that
if the federal government could enforce the Fugitive Slave Clause, then it could also enforce the Privileges
and Immunities Clause. Id. at 234. Justice Sutliff's opinion was reprinted in pamphlet form for mass
distribution. Dissenting opinion of Hon. Milton Sutliff, One of the Judges, Ex parte Simeon Bushnell, Ex
Parte Charles Langston (n.p. 1859), reprintedin 4 FuGITIVE SLAVES AND AMERICAN COURTS, supra note
99, at 23.
113. Prigg v. Commonwealth of Pennsylvania, 41 U.S. (16 Pet.) 539 (1842). See generally Paul
Finkelman, Prigg v.Pennsylvania and Northern State Courts:Anti-Slavery Use of a Pro-Slavery Decision,
25 CIV. WAR HIST. 5 (1979). The Court held that while the federal government could enforce the Fugitive
Slave Clause directly, it could not force state officers to enforce the Clause. Prigg,41 U.S. (16 Pet.) at 615.
Thus, Prigg upheld federal legislation notwithstanding the lack of specific authority for its passage. Id. at
615-16.
Fairman concluded that because the Supreme Court in Priggupheld the constitutionality of the federal
Fugitive Slave Law, Bingham erred when he argued that Article Iv's Privileges and Immunities Clause
could not be enforced. FAIRMAN, RECONSTRUCTION I, supra note 5, at 1276. Yet, Fairman did not
acknowledge as inconsistent with Prigg the Court's decision in Commonwealth of Kentucky v. Dennison,
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77
Wolcott, and Bingham, and antislavery judges like Ohio Supreme Court Judges
Brinkerhoff
and Sutliff rejected this aspect of Priggjust as they rejected Dred
t4
Scott. 1
The political aftermath of the Bushnell decision demonstrates that, at least
in Ohio, a great deal of popular support existed for Bingham's view of the
Constitution. The three-to-two majority rejecting the antislavery view consisted
of two Democrats and one Republican, Chief Judge Joseph R. Swan. While
Swan had previously enjoyed considerable popularity and prestige," 5 the
Republican Convention of 1859 denied Swan renomination by a vote of 217
to 140.116
While Swan was repudiated, dissenting Judge Brinkerhoff was celebrated.
A well-known Free-Soil Democratic Congressman prior to his service on the
Court, Brinkerhoff was re-nominated and re-elected to the Court twice after the
publication of his dissent in Bushnell, once in 1860, and again in 1864."'
According to one historian, the "entire issue" of Brinkerhoff's 1860 re-election
campaign was his judicial opposition to the 1850 Fugitive Slave Law.l"'
Brinkerhoff's sweeping 1860 victory was the Ohio Republican Party's "most
brilliant one" up to that time. 1 9
Support for Bingham's compact theory was not confined to Ohio. Attorney
General Wolcott, arguing before the U.S. Supreme Court in Commonwealth of
Kentucky v. Dennison,1 20 pursued portions of this argument as it applied to
the Fugitive from Justice Clause of Article IV, Section Two. Chief Justice
Taney, writing for a unanimous Court in Dennison, referred to Article IV,
Section Two as a "compact"12 in words that echoed Wolcott's argument in
Ex parte Bushnell. While concluding that the Governor of Ohio was bound to
65 U.S. (24 How.) 66 (1861), which held that the Fugitive from Justice Clause of Art. IV, Section 2 was
unenforceable. FAIRMAN, RECONSTRUCTION I, supra note 5, at 394.
114. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
115. Swan was one of the founders of the Ohio Republican Party and had presided over its first state
convention. He was nominated for the Ohio Supreme Court by acclamation, and was elected to the court
in 1854 by a substantial majority of the votes cast. REPUBLICAN PARTY OF OHIO, supra note 106, at 9, 13,
24, 27.
116. Id. at 90.
117. Id.at 209; 3 DICTIONARY OF AMERICAN BIoGRAPHY 49 (Allen Johnson ed., 1929).
118. Paul Finkelman, Prelude to the FourteenthAmendment: Black Legal Rights in the Antebellum
North, 17 RTrGERs L.J. 415, 461 (1986).
119. Id. at 461 (quoting EUGENE ROsEBoOM, A HISTORY OF THE STATE OF OHIO: THE CIVIL WAR
ERA 371 (1978)). Further evidence of support for the compact theory can be found in the Ohio Republican
Party's platform of 1859. The platform was prepared by the Convention's Committee on Resolutions, which
Bingham chaired. THE OHIO PLATFORMS OF THE REPUBLICAN AND DEMOCRATIC PARTIES FROM 1855 TO
1881 INCLUSIVE (1881) [hereinafter OHIO PLATFORMS]. "[Plartly inspired" by Bushnell, REPUBLICAN PARTY
OF OHIO, supra note 106, at 90, the platform demanded the repeal of the Fugitive Slave Act of 1850,
calling the legislation "subversive of both the rights of the States and the liberties of the people." OHIO
PLATFORMS, supra, at 9. In the election of 1859, Republican candidate William Y. Gholson narrowly
defeated his Democratic opponent, in what amounted to a referendum on Bushnell. REPUBLICAN PAmRY
OF OHIO, supra note 106, at 94-95.
120. 65 U.S. (24 How.) 66, 90-93 (1859), overruled by Puerto Rico v. Branstad, 483 U.S. 219 (1987).
121. Id. at 109.
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deliver the fugitive, Taney stated that "there is no power delegated to the
General Government... to use any coercive means to compel him" to do
so."' Indeed, according to Chief Justice Taney, Article IV, Section Tvo was
declaratory of the moral duty which this compact created when
Congress had provided the mode of carrying it into execution. The act
does not provide any means to compel the execution of this duty...
nor is there any clause or provision in the Constitution which arms the
Government of the United States with this power."
Thus, Bingham's compact theory coincided with fundamental tenets of
antislavery theory and, on at least one occasion, a decision of the U.S.
Supreme Court. Prominent judges, lawyers, and members of Congress shared
Bingham's conviction that the Constitution prohibited the states from abridging
the privileges and immunities protected by Article IV, Section 2, but that
Congress could not enforce the provision. 2 4
B. Politicaland PopularPerspectives
Contemporary statements by politicians and the popular press refute
Fairman's claim that Bingham's constitutional theory was singular. For
instance, this evidence reveals that Bingham's national citizenship theory was
not unique. Among Bingham's contemporaries concurring with his view that
privileges and immunities were elements of national citizenship were Michigan
Senator Jacob Howard,'5 Ohio Congressman William Lawrence,' 26 Ohio
122. Id. at 109-10.
123. Id. at 107. Dennison may have reflected an effort by the Court to support the theory that even
though the states did not have the right to secede, the federal government did not have the right to use force
to keep them in the Union. See Paul Finkelman, States' Rights North and South in Antebellum America,
in AN UNCERTAIN TRADITION, CONSTITUTIONALISM AND THE HISTORY OF THE SOUTH 146 (Kermit L. Hall
& James W. Ely, Jr. eds., 1989). Regardless of the motivation, the legal principles the Court announced
coincided with antislavery legal theory and Bingham's compact theory.
124. After the Civil War, some antislavery activists modified aspects of this constitutional theory. For
instance, during the debates on the 1866 Civil Rights Bill, Representative Wilson of Iowa pragmatically
accepted the pro-slavery decisions of the Taney Court. Wilson argued that if Prigg v. Pennsylvania, 41 U.S.
(16 Pet.) 539 (1842), authorized enforcement of the Fugitive Slave Clause, the decision was precedent
which demonstrated the legitimacy of the Civil Rights Bill. CONG. GLOBE, 39th Cong., 1st Sess. 1118
(1866) ('We will turn the artillery of slavery upon itself.") Senator Trumbull made similar arguments in
the Senate. Id.at 605. Thus Wilson and Trumbull agreed with Bingham that the Bill of Rights applied to
the states through Article IV, Section 2, but both argued that Congress already had an enforcement power.
Id. at 1118, 1294; see also Curtis, supra note 24, at 80-81; Crosskey, supra note I], at 46-47 (discussing
Wilson's and Bingham's views of the Civil Rights Bill).
125. Senator Howard, in a speech on the Fourteenth Amendment, referred to Article IV,Section 2,
as applying to "citizen[s] of the United States." CONG. GLOBE, 39th Cong., 1st Sess. 2764-68 (May 23,
1866). While Fairman concluded that "Howard spoke inaccurately," FAIRMAN, RECONSTRUCTION I, supra
note 5, at 1291, 1294, Howard, like Bingham, may have thought that the Article IV language "citizens in
the several states" should be read as "citizens of the United States in the several states." See infra note 69
and accompanying text.
126. During the debate over the Civil Rights Bill, Ohio Congressman Lawrence explained that "'the
citizens of each State' if they remove from one State to another 'shall be entitled to all privileges and
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Senator John Sherman, 27 Indiana Senator Henry S. Lane,1 28 several
Radical Republicans, 2 9 and, perhaps, Ohio Congressman and future President
Garfield.1 30 Justice Bradley subsequently articulated a similar position in his
dissent in the Slaughter-House Cases. Bradley wrote, "It is pertinent to observe
that... the clause of the Constitution referred to... speak[s] of the privileges
and immunities of citizens in a State; not of citizens of a State.''
Many prominent contemporaries of Bingham also shared his Bill of Rights
theory, believing that the privileges and immunities of U.S. citizens included
the provisions of the Bill of Rights. In 1864, James Wilson, Chairman of the
House Judiciary Committee, Representatives John Kasson and John F.
Farnsworth all stated that the provisions of the Bill of Rights "defined the
'privileges and immunities' of state and national citizens."' 3 2 Wilson stated
that the First Amendment was only one of "many... constitutional rights of
the citizen" which were protected under Art. IV, Section 2.133 Republican
Representative Sidney Clarke of Kansas expressed the same interpretation of
"privileges and immunities" on the floor of Congress. 134 After the adoption
immunities of citizens' of the United States 'in the' State to which they remove." CONG. GLOBE, 39th
Cong., 1st Sess. 1836 (Apr. 7, 1866).
127. In speaking of Article IV, Section 2, Sherman referred to exercising "the immunity of a citizen
of the United States." TENBROEK, supra note 8, at 185-86 n.14.
128. Senator Lane maintained that African Americans were "entitled to all the privileges and
immunities of other free citizens of the United States." Id. at 186 n.14.
129. See, for example, the petition directed to Congress by Radical Republican Rev. George B.
Cheever, Edward Gilbert, and Parker Pillsbury. THE REVEREND GEORGE B. CHEEVER AND OTHERS,
PETITION, (Nov. 30, 1865), reprintedin THE RADICAL REPUBLICANS AND RECONSTRUCTION, 1861-1870,
at 280 (Harold M. Hyman ed., 1967).
130. In the debate over the Freedman's Bureau Bill, Garfield stated:
In reference to persons, we must see to it, that hereafter, personal liberty and personal rights
are placed in the keeping of the nation; that the right to life, liberty, and property shall be
guarantied [sic] to the citizen in reality as they now are in the words of the Constitution, and
no longer left to the caprice of mobs or the contingencies of local legislation. If our Constitution
does not now afford all the powers necessary to that end, we must ask the people to add them.
We must give full force and effect to the provision that "no citizen shall be deprived of life,
liberty, or property without due process of law." We must make it as true in fact as it is in law,
that "the citizens of each State shall be entitled to all the privileges and immunities of citizens
in the several States." We must make American citizenship the shield that protects every citizen,
on every foot of our soil.
CONG. GLOBE, 39th Cong., IstSess. app. at 67 (Feb. 1, 1866). In contemplating a possible constitutional
amendment, Garfield may have viewed the Fifth Amendment as providing the sole content of a citizen's
privileges and immunities. Yet, Garfield's references placing "personal liberty and personal rights" within
national protection and to "American citizenship" suggest that Garfield, like Bingham, may have read the
Privileges and Immunities Clause of Article IV, Section 2 to protect the rights of U.S., not state, citizenship.
He may have viewed the provisions of the Fifth Amendment as representing some but by no means all the
privileges and immunities of U.S. citizens.
131. 83 U.S. (16 Wall) 36, 117 (1872) (Bradley, J., dissenting). Two generations later, Justice Roberts,
while accepting the interpretation that Article IV, Section 2 merely prohibited discrimination against citizens
of other states, noted that earlier some people had thought that "the purpose of the section was to create
rights of citizens of the United States" by guaranteeing natural rights. Hague v. CIO, 307 U.S. 496, 511
(1939) (emphasis added).
132. Curtis, supra note 24, at 61-64; see also CURTIS, supra note 24, at 37-38; HYMAN & WIECEK,
supranote 102, at 404 (citations omitted).
133. CONG. GLOBE, 38th Cong., 1st Sess. 1202 (March 19, 1864)
134. HYMAN & WIECEK, supra note 102, at 405.
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of the Fourteenth Amendment, ten Representatives and three Senators
expressly stated that they believed that the privileges and immunities of
national citizenship included the protections of the Bill of Rights.'35
Adoption of the 1871 Ku Klux Klan Act demonstrated congressional
concurrence with Bingham's enforcement theory, as well. Proponents of the
statute had argued that the Fourteenth Amendment guaranteed the protections
opponents of the Act argued
of the Bill of Rights against the states whereas
t36
controlling.
still
was
Baltimore
v.
Barron
that
In 1874, Kentucky Democrat James B. Beck stated that the Fourteenth
Amendment applied the Bill of Rights to the states.137 In evaluating Beck's
speech, historian Eric Foner wrote that "by 1874 this had become a virtually
noncontroversial minimum Congressional interpretation of the Amendment's
purposes." 38
Aspects of Bingham's compact and enforcement theories are evident in a
Senate resolution of February 1, 1866. This provided that the Joint Committee
on Reconstruction, of which Bingham was a member, should
inquire into the expediency of amending the Constitution of the
United States so as to declare with greater certainty the power of
Congress to enforce and determine by appropriate legislation all the
guarantees contained in that instrument, and more especially,. . that
which assures the citizens of each State all privileges and immunities
of citizens in the several States.139
The Senate likely chose the words "greater certainty" to embrace both those
who, like Wilson, thought the enforcement power existed even though it had
not been used effectively; and those who, 140like Bingham, believed no
enforcement power existed in the Constitution.
135. See THE RECONSTRUCTION AMENDMENTS' DEBATES, supra note 93, at xxiv (Rep. Dawes), xxvii
(Ohio Sen. and former Ohio Chief Justice Allen Thurman), xxix (Rep. Roger Q. Mills of Texas), xxiii (Rep.
Maynard of Tennessee); Avins, supra note 16, at 8-9 (Thurman, Mills, Sen. John Sherman, Ohio Rep. and
former Judge William Lawrence, Texas Rep. William Herndon, and Georgia Sen. Thomas M. Norwood).
Crosskey included Ohio Representatives Garfield and Monroe, Massachusetts Representatives Hoar and
Benjamin F. Butler, Illinois Representative Farnsworth and Tennessee Representative Horace Maynard.
Crosskey, supra note 11, at 93-95. See CONG. GLOBE, 42d Cong., 1st Sess. 499 (Apr. 5, 1871).
136. ROBERT KACZOROWSKI, THE POLMCS OF INTERPRErATION: THE FEDERAL CoURTS, DEPARTrIENT
OF JUSTICE AND CIVIL RIGHTS, 1866-1876, at 57 (1985). When discussing one bill to enforce the
Fourteenth Amendment in 1871, Representative M.H. Dunnell said that "[iut was supposed the fourteenth
amendment made doubly certain all the rights set forth in the Constitution." CONG. GLOBE, 42d Cong., 1st
Sess., app. at 262 (Apr. 4, 1871).
137. CONG. REC., 43d Cong., IstSess. 342-43 (Dec. 19, 1873).
138. ERIC FONER, RECONSTRUCTION 533 (1988).
139. CONG. GLOBE, 39th Cong., 1st Sess. 566 (Feb. 1, 1866) (emphasis added).
140. Bingham's conviction that an express enforcement provision was required proved correct in Ex
Parte Virginia, where the Court stated, "Were it not for the fifth section of the Fourteenth Amendment,
there might be room for argument that the first section is only declaratory of the moral duty of the State,
as was said in Commonwealth of Kentucky v. Dennison." 100 U.S. 339, 347 (1879).
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Senator Henry Wilson agreed with Bingham's overall constitutional
analysis in an address on the floor of the Senate, referring to Bingham's March
31, 1871, speech treating the purpose of the Fourteenth Amendments Privileges
or Immunities Clause. Wilson said, "I concur entirely in the construction put
upon that provision of the141fourteenth amendment by Mr. BINGHAM, of Ohio,
by whom it was drawn."'
Fairman himself referred to several members of Congress whose comments
during the debates on the Fourteenth Amendment were entirely consistent with
Bingham's constitutional views. Fairman included the remarks of Frederick E.
Woodbridge of Vermont, who indicated that the proposed amendment would
protect citizens of the United States in their privileges and immunities
guaranteed under the Constitution. Woodbridge said these included the
inalienable rights of life and liberty and the protection of property in foreign
states.142 This statement bears striking resemblance to Bingham's 1862
protections were "[t]he great privilege
speech indicating that Fifth Amendment
143
citizenship.
U.S.
of
immunity"
and
Fairman quoted from speeches by Congressman William I-Igby of
California,' 44 Congressman William D. Kelley of Pennsylvania,145 and
Senator Luke E. Poland of Vermont 46 which included statements that the
Fourteenth Amendment would provide enforcement power for existing
provisions of the Constitution. Yet Fairman failed to acknowledge that these
statements coincided with Bingham's compact theory.
Fairman's assessment of Senator Poland helps explain his failure to place
Bingham's constitutional theory within the political and legal mainstream. As
Fairman noted, Poland stated that Section One of the Fourteenth Amendment
"secure[d] nothing beyond what was intended" by the Privileges and
Immunities Clause in Article IV.47 A reasonable interpretation of this
statement is that Poland meant Section One would "secure" through the
Amendment's enforcement provision what the original framers had "intended,"
but had not "secured" in Article IV, Section 2. This interpretation of Poland's
statement is consistent with Bingham's compact and enforcement theories and
Sess. app. at 256 (Apr. 13, 1871).
141. CONG. GLOBE, 42d Cong., Ist
142. FAIRMAN, RECONSTRUCTION I, supra note 5, at 1279.
143. CONG. GLOBE, 37th Cong., 2d Sess. 1639 (Apr. 11, 1862).
144. According to Higby, an early version of the Fourteenth Amendment would "only have the effect
to give vitality and life to portions of the Constitution that ...have been entirely ignored and have become
as dead matter in that instrument." FAIRMAN, REcONSTRUCTION I, supra note 5, at 1276. This portion of
Higby's speech was reported in The Joint Resolution To Amend the Constitution, N.Y. TIMES, Feb. 28,
1866, at 1. Higby said that Article IV, Section 2 had been "trampled under foot" and considered "nugatory"
in some states. CONG. GLOBE, 39th Cong., 1st Sess. 1054 (Feb. 27, 1866).
145. According to Kelley, "all the power this amendment will give is already in the Constitution. I
admit that it has lain dormant." FAIRMAN, RECONSTRUCTION I, supra note 5, at 1276.
146. Id. at 1296.
147. Id.
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finds support in Poland's own language. Poland stated, "Congress should be
invested with the power to enforce this provision throughout the country." 148
Fairman, however, ignored this interpretation and the parallel between the
views of Bingham and Poland. Instead, Fairman suggested that Poland either
spoke imprecisely or simply meant that "the new privileges and immunities
clause would mean no more than the old."' 4 9 If the latter interpretation were
correct, Fairman implied, the Privileges or Immunities Clause of the Fourteenth
Amendment was redundant and its proposal in Congress and Poland's action
in supporting it nonsensical. Fairman stated, "Once again, as so often in
studying the work of the 39th Congress, one is at a loss to know what the
speaker really had in mind."'150 Yet a sensible and logical interpretation of
Poland's remarks was available. It is only because Fairman failed to read
statements in context that remarks by "respected lawyers" like Poland become
unintelligible.
Excerpts from the popular press demonstrate further that Bingham's
constitutional views were widely shared. 5 ' The National Intelligencer,which
Fairman identified as both Washington, D.C.'s leading newspaper and a
supporter of President Johnson, espoused Bingham's compact and enforcement
theories. It stated, "[Section One] ... is only, if we understand '5it2 correctly,
undertaking to carry out what the Constitution now commands."'
An 1871 article in the Nation set forth a Fourteenth Amendment theory
which, in large part, echoed all four components of Bingham's constitutional
theory.15 3 The Nation explained that the new amendment was "declaratory"
and "introduced no new principle." It simply made explicit what the
Constitution already implicitly provided: the states were prohibited from
making or enforcing any law that would abridge the privileges or immunities
of citizens of the United States.'54 Section One of the Fourteenth Amendment
removed any "doubts" regarding this prohibition and "simply put into a
148. Id.
149. Id.
150. Id.
151. Fairman viewed as significant the fact that many newspaper accounts of the Fourteenth
Amendment debates focused almost exclusively on Sections Two and Three and that those which did
discuss Section One often did not indicate that the new Amendment would apply the Bill of Rights to the
states. For instance, Fairman noted the omission of any discussion of the Bill of Rights in the New York
Times' May 25, 1866, coverage of Senator Howard's speech introducing the Fourteenth Amendment before
the Senate. As Michael K. Curtis has noted, however, the Times had previously reported a speech by
Bingham regarding an early version of the Fourteenth Amendment indicating that it would enforce the Bill
of Rights against the states. Moreover, Curtis found that the front page of the May 24, 1866, issue of the
Times reported Howard's speech, including his indication that the provisions of the Bill of Rights were
privileges or immunities under the Fourteenth Amendment. See Fairman,supra note 1, at 68-81; see also
CuRTIS, supra note 24, at 128 (citing N.Y. TIMES, Mar. 1, 1866, at 5; Mar. 2, 1866, at 2; and May 24,
1866, at 1); Fairman, supra note 1, at 79 n.146.
152. FAIRMAN, RECONSTRUCTION I, supra note 5, at 1290 (citing The National Intelligencer,May 15,
1868).
153. Rights of Citizens, NATION, May 18, 1871, at 335-36.
154. Id. at 335.
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positive and express form what was before inferential."' 55 The Nation,
however, viewed the scope of congressional enforcement power under the
Fourteenth Amendment more narrowly than did Bingham." 6
Rather than promoting an eccentric view of the Constitution, Bingham
articulated a theory consistent with the views of many contemporary leading
political leaders and journalists. While this accord does not indicate that
Bingham's views met with universal approval, it does demonstrate that they
were not "singular."
C. Legal Theorists
Fairman asserted that Bingham's constitutional theory was idiosyncratic.
In fact, Bingham's understanding of the Fourteenth Amendment fell within the
mainstream of legal thought during the critical 1866 to 1868 period. At least
four legal writers published constitutional law treatises in 1867 and 1868,
during and shortly after the ratification process. 57 Three of these treatises
explicitly support Bingham's theory of the Fourteenth Amendment, and the
fourth is silent on the point.
1. Judge Farrar
In 1867, after the Fourteenth Amendment was proposed but before it was
ratified, Judge Timothy Farrar published his Manual of the Constitution of the
United States.15 In this treatise, Farrar set forth a constitutional theory
155. Id.
156. The Nation argued that Congress could use its enforcement power to remedy the enforcement
of a state statute that violated the Fourteenth Amendment, but that the Amendment provided no authority
for Congress to remedy the maladministration of otherwise proper state laws. Rather, the Nation argued,
the ballot box and public opinion provided the only remedies for these violations. Id.
157. The authors discussed in this Section quite possibly are the only legal scholars who published
legal treatises of the Fourteenth Amendment contemporaneously with its ratification. I found no source that
purports to compile all the constitutional law treatises from this period. Fairman cited Cooley in his 1949
article, Fairman, supra note 1, at 116 n.306, and Farrar in 1971, FAIRMAN, RECONSTRUCTION I, supra note
5, at 1129-34. Pomeroy has long been known to historians of Reconstruction. Harold M. Hyman,
Reconstruction and Political-ConstitutionalInstitutions: The PopularExpression, in 1 NEw FRONTIERS OF
THE AMERICAN RECONSTRUCTION 37 (Harold M. Hyman ed., 1966) [hereinafter NEw FRONTIERS]. Several
letters led me to Paschal's treatise. See Letter from George W. Paschal to R.B. Hayes (Jan. 16, 1869) (on
file in Hayes Presidential Center, Fremont, Ohio); Letter from John A. Bingham to R.B. Hayes (Jan. 14,
1869) (on file in Hayes Presidential Center, Fremont, Ohio).
Sources cited in the treatises by these writers, the traditional literature on the Fourteenth Amendment
and Reconstruction, the NINETEENTH-CENTURY LEGALTREATISES, GUIDE TO THE MICROFICHE COLLECTION
(Research Publications, 1984), and the table of cases and authorities provided in THE RECONSTRUCTION
AMENDMENTS' DEBATES, supra note 93, at 754-56, suggest no additional constitutional law treatises of
relevance published during the 1866-1868 period. For example, George Comstock's four-volume edition
of Kent's commentaries was published in 1867, but does not refer to the Fourteenth Amendment. The copy
of the Constitution reproduced in the appendix contains only twelve amendments. GEORGE COMSTOCK, I
COMMENTARIES ON AMERICAN LAW BY JAMES KENT (11th ed. 1867).
158. TIMOTHY FARRAR, MANUAL OF THE CONSTITUTION OF THE UNITED STATES (1867) [hereinafter
FARRAR 1867]. Farrar had been Daniel Webster's law partner from 1813 to 1816. See 2 APPLETON'S
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consistent with Bingham's national citizenship and Bill of Rights theories. Like
Bingham, Farrar thought that privileges and immunities of Article IV were
those of "every citizen of the United States. 1 59 And like Bingham, Farrar
believed that a citizen's privileges and immunities included the provisions of
the Bill of Rights. Farrar wrote:
The right of every person to "life, liberty, and property," to "keep and
bear arms," to the "writ of habeas corpus," to "trial by jury," and
divers others, are recognized by, and held under, the Constitution of
the United States, and cannot be infringed by individuals or States, or
even by the government itself. 6
Farrar acknowledged Barron and other contrary authority, but relied on the
16 1
opinions of New York State Chief Justice Spencer in People v. Goodwin
and Justice Johnson in Houston v. Moor 6 2 to argue that the Fifth
Amendment applied to both state and national governments. 163 He listed the
rights of citizens applicable to both governments, paraphrasing and citing all
of the first ten amendments. 164
Thus, like Bingham, Farrar believed that Article IV,Section 2 had already
made the Bill of Rights applicable to the states. Farrar wrote, "The clause
itself, however, supplies no means for its own execution, and directly invokes
no legislative aid from Congress. For more than three quarters of a century,
without any legislation or governmental action of any sort, it stood a perfect
dead letter in the Constitution."' 6
Unlike Bingham, however, Farrar believed that, even prior to ratification
of the Fourteenth Amendment, Congress had had the authority to enact
legislation enforcing Article IV.Farrar viewed the Civil Rights Act of 1866 as
such an effort. 166 Still, Farrar fully agreed with Bingham's enforcement
theory concerning the purpose and effect of the Fourteenth Amendment. In the
1872 edition of his treatise, Farrar again noted judicial precedents that had held
the Bill of Rights inapplicable against the States, but, under the title "Settled
CYCLOPEDIA OF AMERICAN BIOGRAPHY 420 (James G. Wilson & John Fiske eds., 1888). Farrar's father
had served as a justice of the New Hampshire Supreme Court and Farrar himself was a judge of the New
Hampshire Court of Common Pleas from 1824 to 1826. I. Judge Farrar was also an abolitionist. See
HYMAN & WIECEK, supra note 102, at 234.
159. FARRAR 1867, supra note 158, at 199.
160. Id. at 145. Farrar believed that the rights secured by the Bill of Rights were "natural and civil
common-law rights" that could not be infringed by "any subordinate govemment." Id. at 58-59.
161. 18 Johns. 187 (N.Y. 1820).
162. 18 U.S. (5 Wheat.) 1 (1820).
163. FARRAR 1867, supra note 158, at 395-96.
164. Id. at 396-97.
165. Id. at 199-200.
166. Id. at 200-02.
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Questions" concluded, "All these decisions ...are entirely swept away by the
167
14th amendment."'
Farrar was a respected figure, and his views were widely known. An Ohio
congressman, Judge William Lawrence, cited Farrar's 1867 treatise as authority
to defend the constitutionality of the 1866 Civil Rights Act. 16 Historians
have praised Farrar's abilities and noted his influence on national leaders
during the Civil War and Reconstruction as well as his role "help[ing] to
define clearly public attitudes on the nature and purpose of the
1 69
Constitution."
Fairman did not mention Farrar in his 1949 article. In 1971, Fairman cited
Farrar's work as an example of "what distortion can be practiced through a
zeal to redress injustice."' 170 Devoting only five pages to Farrar, Fairman
focused on and disparaged Farrar's arguments that the Constitution had
prohibited slavery from the outset. According to Fairman, Farrar himself was
willing to deny "the plain meaning of the Constitution as it had been known
'7
from the beginning.
Admittedly Farrar's belief in slavery's unconstitutionality was an extreme
variant of abolitionist legal theory. Still, a group of legal thinkers, including
Lysander Spooner, had advanced this theory as early as 1845.172 More
significantly, Fairman discussed Farrar's views on slavery while omitting any
meaningful reference to Farrar's other constitutional theories. Fairman
disagreed with Farrar's views on the Fourteenth Amendment and might have
used Farrar's views on slavery to cast doubt on Farrar's judgment that the
Fourteenth Amendment was designed to overrule Barron and to enforce the
Bill of Rights against the States. Instead, Fairman ignored entirely Farrar's
view that the Fourteenth Amendment applied the Bill of Rights to the states,
a view contrary to Fairman's own.
2. Judge Paschal
Judge George W. Paschal's The Constitution of the United States Defined
and Carefully Annotated,"3 published in 1868, further supports the argument
167. TIMOTHY FARRAR, MANUAL OF THE CONSTITUTION OF THE UNITED STATES 546 (3d ed. 1872)
[hereinafter FARRAR 1872]. While Farrar did not explicitly cite any cases, he was undoubtedly referring
to Barron v. Baltimore, 32 U.S. (7 Pet) 248 (1833), and its progeny.
168. CONG. GLOBE, 43d Cong., IstSess. 413 (January 6, 1874); see also CoNG. GLOBE, 41st Cong.,
3d Sess. 1244 (Feb. 14, 1871) (on the Guarantee Clause).
169. Hyman, supra note 157, at 30-32; see also CARL B. SWISHER, THE TANEY PERIOD, 1836-1864,
at 643. in 5 HISTORY OF THE SUPREME COURT OF THE UNITED STATES (Paul A. Freund, ed., 1974) (calling
Farrar an "able Boston lawyer"); Samuel Lee, Thmothy Farrar LLD., 29 NEv ENG. HIST. &
GENEALOGICAL REG. 21 (1875).
170. FAIR AN, RECONSTRUCTION I, supra note 5, at 1129.
171. Id. at 1134.
172. See ROBERT M. COVER, JUSTICE ACCUSED 156-58 (1975).
173. GEORGE W. PASCHAL, THE CONSTrtrTON OF THE UNITED STATES (1868) [hereinafter PASCHAL
1868].
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that Bingham's constitutional theory fell within the legal mainstream. Paschal
was a prominent politician, lawyer, jurist, and law professor.t 74 Paschal
published his treatise while the ratification of the Fourteenth Amendment was
pending. 175 He called on his readers to consider "carefully" the effect of the
Amendment, and then he proposed to explain that effect. 176 Paschal cited
77
Farrar's interpretation of the Fourteenth Amendment with approval.
Paschal viewed the citizenship clause of Section One of the Fourteenth
Amendment as constitutionalizing Section One of the Civil Rights Act. 78 Of
the remainder of Section One of the Fourteenth Amendment, he wrote:
All else in this section has already been guaranteed in the second and
fourth section of the fourth article; and in the thirteen amendments.
The new feature declared is that the general principles which had been
construed to apply only to the national government, are thus imposed
had adopted the
upon the States. Most of the States, in general terms,
79
same bill of rights in their own constitutions.1
Thus, Paschal echoed Bingham's view that the Fourteenth Amendment would
enforce the Bill of Rights against the states. By indicating that "most" states
had adopted the same bill of rights in state constitutions, Paschal also
addressed and defused the argument later espoused by Fairman that
inconsistencies between the federal Bill of Rights and the rights provided in
various state constitutions were fatal to Bingham's enforcement theory. 80
174. Paschal studied law in Georgia, served as a justice on the Arkansas Supreme Court, and was
active in law and politics in Texas. 4 APPLETON'S ENCYCLOPEDIA OF AMERICAN BIOGRAPHY, supra note
158, at 667. He was influential in the election of Unionist candidate Samuel Houston as Governor of Texas
in 1859, id., and his support for the Union later led to his arrest for disloyalty to Texas. See id.; Jane L.
Scarborough, George W. Paschal, Texas Unionist and Scalawag Jurisprudent, 76 (1972) (unpublished Ph.D.
dissertation, Rice University). Paschal moved to Washington, D.C., in 1869 and helped found the law
department of Georgetown University, where he became first professor of jurisprudence. Id. at 76. In a
public speech in 1870, Paschal indicated that he had given much of his life to the study of "the true
principles of the Constitution." GEORGE W. PASCHAL, LECrURE DELIVERED TO THE AMERICAN UNION
ACADEMY OF LITERATURE, SCIENCE, AND ART, AT ITS SPECIAL MEETING CALLED FOR THE PURPOSE
(MARCH 7, 1870), reprintedin GEORGE H. PASCHAL, THE CONSITtUTION OF THE UNITED STATES, DEFINED
AND CAREFULLY ANNOTATED, at xliv (2d ed. 1876) [hereinafter PASCHAL 1876].
175. PASCHAL 1868, supra note 173, at 280-81.
176. Id. at 290.
177. Id. at 281 (referring to Farrar as one whose opinions are "entitled to respect" on question of
ratification of Fourteenth Amendment), 290 (on the effect of the citizenship clause), 293 (giving a "see"
reference to Farrar's discussions of Sections One and Two of the Amendment).
178. Id. at 290.
179. Id. (emphasis added). In an 1870 speech, Paschal listed actions that were prohibited to both the
federal government and the states. These included:
establishing religion, or preventing the free exercise thereof; abridging the freedom of speech,
of the press, or the right of petition; instituting domiciliary visits; abolishing grand juries and
jury trial for the citizen not connected with the military service; invading life, liberty, or
property without due process of law, or in any manner violating the most enlarged principles
of republican government.
PASCHAL, LECTURE, reprinted in PASCHAL 1876, supra note 174, at xli.
180. Fairman, supra note 1, at 84-128.
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Unlike Bingham, however, Paschal did not believe that Article IV, Section
Tvo had applied the Bill of Rights to the states prior to the Fourteenth
with Bingham regarding what the
Amendment. Nevertheless, Paschal agreed
18
Fourteenth Amendment accomplished.'
Not surprisingly, Bingham endorsed Paschal's treatise. In a January 14,
1869, letter to Ohio Governor Rutherford B. Hayes, Bingham indicated that he
considered Paschal's book to be "a want by the whole country."'182 Bingham
encouraged Hayes to purchase copies of the book for members of the state
legislature because "it is well to give public officials the means of more fully
understanding [the Constitution's] sure and essential provisions."' 83 Four
years later, as Chairman of the House Judiciary Committee, Bingham asked the
House of Representatives to purchase ten thousand copies of Paschal's book
for distribution to members of the House. Though Bingham's praise for the
book focused on its treatment of Supreme Court cases, he noted that "it is an
aid really to every Representative in Congress."'" Following his appointment
Paschal's treatise
as minister to Japan, Bingham indicated that he 1wanted
85
included with the books for the Japanese Legation.
Bingham was but one of many national leaders impressed with Paschal's
work. Representative William Lawrence, 8 6 Senator George Vickers,' 87
Representative James Garfield, t8 8 and Senator Lyman Trumbull 89 relied
on Paschal's 1868 treatise during speeches on the floor of Congress. The
Constitutional Convention of Texas and some state legislatures purchased
copies. 90
Justice Samuel Miller referred to the treatise as a "very valuable
' Former Representative Albert Riddle, a Washington lawyer and
work." 19
law professor at the Howard University Law Department, praised the treatise
as "the most convenient and useful, the most extensive and valuable digest of
181. See PASCHAL 1868, supra note 173, at 225-65.
182. Letter from John A. Bingham to Rutherford B. Hayes (Jan. 14, 1869) (on file in the Hayes
Presidential Center, Fremont, Ohio).
183. Id. In a letter dated January 27, 1869, W.R. Thrall, the Private Secretary to Governor Hayes,
replied to a letter of Judge Paschal dated January 16, 1869. Mr. Thrall indicated that Paschal's book was
"commended generally" by many members of the state legislature, but that they had no "disposition" to
order copies for their use. Letter from W.R. Thrall to George W. Paschal (Jan. 27, 1869) (on file in the
Hayes Presidential Center, Fremont, Ohio).
184. CONG. GLOBE, 42d Cong., 3d Sess. 858 (Jan. 25, 1873). While Congressmen Garfield and
Farnsworth successfully opposed Bingham's motion, they both praised the treatise. Id.
185. John A. Bingham, List of Books for the Japanese Legation (July 1873) (on file in the Bingham
Papers, Milton Ronsheim Collection, Cadiz, Ohio).
186. CONG. GLOBE, 41st Cong., 3d Sess. 1243-45 (Feb. 14, 1871).
187. CONG. GLOBE, 42d Cong., 2d Sess. app. at 41 (Feb. 8, 1872).
188. CONG. GLOBE, 42d Cong., 1st Sess. app. at 152 (Apr. 4, 1871) ("I hold in my hand Paschal's
annotated edition of the Constitution.").
189. CONG. GLOBE, 42d Cong., 1st Sess. 575 (Apr. 11, 1871).
190. Letter from George W. Paschal to Rutherford B. Hayes (Jan. 16, 1869) (on file in the Hayes
Presidential Center, Fremont, Ohio); see also HAROLD M. HYMAN, A MORE PERFECt UNION 517 (1973)
(describing Paschal's treatise as "an important addition to nationalist constitutionalism")
191. JUSTICE SAMUEL MILLER, THE CONSTITUTION OF THE UNITED STATES 34 (1880).
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these precedents we have."' 92 Speaking of Paschal, Riddle concluded that
Paschal "accurately apprehended the Constitution in all its aspects."' 93
Paschal's treatise and the praise for it suggest that people who disagreed
with Bingham on many political issues nevertheless shared his view concerning
the purpose of the Fourteenth Amendment. While Farrar and Bingham both
opposed slavery, Paschal was no abolitionist. Paschal was originally a
Jacksonian Democrat and a slaveholder. 194 Shortly after the Civil War,
Paschal said that he had supported "every measure which extended the area of
slavery" and that he had believed it "was religiously, morally and economically
right, wise and just."' 95 He criticized Northerners who moved to the South
after the war, supported pardons for Confederate leaders such as Vice President
Alexander H. Stephens and Postmaster General John H. Reagan, and publicly
denigrated the character and abilities of African Americans.' 96 Paschal
nevertheless "worked diligently for the adoption of the Fourteenth
Amendment."' 197 Indeed, Paschal's statements indicating that the Fourteenth
Amendment made the Bill of Rights applicable to the states suggests that that
proposition was far less exceptionable than Fairman implied.
Fairman was aware of Paschal's prominence, but did not consider
Paschal's treatise when evaluating the Fourteenth Amendment. Fairman
included Paschal in a list of the "leading practitioners" of the Supreme Court
in 1873.98 He described Paschal as "a leading Texas lawyer and steadfast
Unionist ' '199 and gave him credit for having played a "large part" in winning
Texas v. White. °° Though Fairman had cited Paschal's treatise in his 1939
biography of Justice Miller,20' he made no reference to it in his 1949, 1971,
192. IN MEMORIAM-HON. GEO. W. PASCHAL 9 (undated pamphlet on file in the Library of
Congress); see also James P. Hart, George IV Paschal,28 TEX. L. REV. 23, 42 n.84 (1949).
193. IN MEMORIAM-HON. GEO. W. PASCHAL, supra note 192, at 9.
194. Scarborough, supra note 174, at ii, I1, 143. In 1870, even while indicating he would not defend
slavery, Paschal argued that it had been "humanized" in the United States. Paschal, Lecture, in PASCHAL
1876, supra note 174, at xxvi.
195. JAMES MARTEN, TEXAS DIVIDED 72 (1990). Paschal was "radically opposed to... Free Soilism,
Black Republicanism, and the abolition of slavery." 7 THE WRITINGS OF SAM HOUSTON 340 n. I (Amelia
W. Williams & Eugene L. Barker eds., 1942).
196.
197.
198.
199.
Hart, supra note 192, at 23, 30-31.
THE WRITINGS OF SAM HOUSTON, supra note 195, at 340 n.l.
FAIRMAN, RECONSTRUCTION H, supra note 5, at 3-4.
FAIRMAN, RECONSTRUCTION I, supranote 5, at 632. Born in Georgia of Southern parents, Paschal
indicated that his father was "ardently devoted to the Union," GEORGE W. PASCHAL, NINETY-FOUR
YEARS-AGNES PASCHAL 196 (Reprint. Co., Spartanburg, S.C. 1974) (1871), and that when the Civil War
came "[i]t found Mrs. Agnes Paschal true to the Union," id. at 300. Paschal himself was described as "a
loyal citizen of the State of Texas." Texas v. Hardenberg, 77 U.S. (10 Wall.) 68, 70 (1869).
200. Texas v. White, 74 U.S. (7 Wall.) 700 (1868), was a complex and bitterly fought case in which
the reconstruction government of Texas invoked the original jurisdiction of the Supreme Court to recover
state-owned securities sold by the pro-Confederate state government. In the course of vindicating the claim
of the reconstruction government, the Court held that the Union was indestructible and perpetual, but that
only Congress had the authority to reestablish legal relations between the state government and the national
govemment.
201. FAIRMAN, supra note 44, at 351 n.24.
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or 1987 Fourteenth Amendment writings. °2 Had he dealt with this treatise,
Fairman would have found that its views on incorporation were identical to
Bingham's.
3. Dean Pomeroy
Shortly after the Fourteenth Amendment had been proposed, John Norton
Pomeroy authored a treatise entitled An Introductionto the ConstitutionalLaw
and
of the United States. At the time, Pomeroy was Dean of the Law School
20 3
York.
New
of
University
the
at
Science
Political
of
Griswold Professor
In this treatise, Pomeroy described the provisions of the first eight
amendments as "the immunities and privileges guarded by the Bill of
Rights.,,20 4 He suggested that the generality of the language used in the first
eight amendments could be read to indicate the amendments applied to the
states as well as to the national government.20 5 Pomeroy recognized that
Barron v. Baltimore2°6 and state cases following it held the first eight
amendments applied only to the federal government. 2 7 He declared this
result "an unfortunate one 20 8 which called for a remedy. 2 9 According to
Pomeroy "[s]uch a remedy is easy, and the question of its adoption is now
pending before the people."2 ' Citing the portion of the Fourteenth
Amendment drafted by Bingham-all of Section One but the Citizenship
Clause-Pomeroy considered this provision "by far more important" than any
other amendment except the Thirteenth Amendment. 2" Echoing Bingham's
views that the Amendment infringed on no right of the states, Pomeroy wrote:
202. See Fairman, supra note 1; FAIRMAN, RECONSTRUCTION I, supra note 5; FAIRMAN,
RECONSTRUCTION II, supra note 5.
203. JOHN N. POMEROY, AN INTRODUCTION TO THE CONSTITUTIONAL LAW OF THE UNITED STATES,
at i (1868) [hereinafter POMEROY 1868]. For an account of Pomeroy's prominence, see Stephen A. Siegel,
Historicism in Late Nineteenth-Century ConstitutionalThought, 1990 WiS. L. REV. 1431, 1453-54.
204. POMEROY 1868, supra note 203, at 147; see also Hawaii v. Mankichi, 190 U.S. 197, 217-18
(1903) ("... the privileges and immunities contained in the Bill of Rights"); JOHN NV.BURGESS, 1
POLITICAL SCIENCE AND COMPARATIVE CONSTITUTIONAL LAW 184 (1891) (describing Bill of Rights as
"a bill of immunities"); Charles R. Pence, The Constructionof the FourteenthAmendment, 25 AM. L. REV.
536, 540 (1891) (noting that first eight amendments confer privileges and immunities).
205. POMEROY 1868, supra note 203, at 145. Pomeroy regarded this point as largely theoretical since
he thought state governments had provisions that duplicated the federal Bill of Rights. Id. at 145-46.
Fairman later argued that several states did not have a grand jury requirement and would not have ratified
the Fourteenth Amendment if it had been intended to apply the Bill of Rights to the states. Fairman, supra
note 1, at 82-132. Pomeroy apparently was unaware of such differences between state and federal practice
and argued that if the federal Bill of Rights did not apply to the states, then the states could do what some
had indeed done: abolish, among other protections, the grand jury. POMEROY 1868, supra note 240, at 146.
206. 32 U.S. (7 Pet.) 243 (1833).
207. POMEROY 1868, supra note 203, at 147, 149.
208. Id. at 149.
209. Id. at 151.
210. Id.
211. Id.
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[The Fourteenth Amendment] would give the nation complete power
to protect its citizens against local injustice and oppression; a power
which it does not now adequately possess, but which, beyond all
doubt, should be conferred upon it. Nor would this amendment
interfere with any of the rights, privileges, and functions which
properly belong to the individual states.2
Pomeroy's publications, like those of Farrar and Paschal, were known
nationally. 213 Secretary of State Elihu Root, a student of Pomeroy's,
remembered him as possessing "broad and accurate learning and a powerful
and discriminating mind, capable of the most accurate analysis, and a strong
sense of proportion. ,,211 Pomeroy was an important Republican theoretician
who, like Paschal, has been described as a "state-rights nationalist."21' Illinois
Senator Lyman Trumbull relied on Pomeroy on the issue of voting
qualifications in congressional elections.216 Furthermore, West Point and
various other colleges used his treatise as a textbook.217
In a contemporary review of Pomeroy's volume, the Nation praised it as
a "statesmanlike" investigation of the Constitution and labelled the author "so
impartial a writer. 218 The Nation endorsed Pomeroy's view that the Bill of
Rights was not as yet enforceable against the states and, consequently, argued
that the pending Fourteenth Amendment should be adopted. 9
In 1939, Fairman acknowledged the prominence of Dean Pomeroy 22° but
made no reference to Pomeroy's treatise. References to Pomeroy's view on
incorporation of the Bill of Rights are prevalent in the Reconstruction literature
and would have been relevant to Fairman's various writings. 22' By 1987, when
212. Id.
213. PHILLIP S. PALUDAN, A COVENANT WITH DEATH 219 (1975).
214. John N. Pomeroy, Jr., John Norton Pomeroy, 1828-1885, in 8 GREAT AMERICAN LAWYERS 101
(William D. Lewis ed., 1909).
215. HYMAN & WIECEK, supra note 102, at 409.
216. CONG. GLOBE, 41st Cong., 2d Sess. 1363 (Feb. 17, 1870) ("I read from Pomeroy's Constitutional
Law, a recent and valuable work.").
217. 5 APPLErON'S CYCLOPEDIA OF AMERICAN BIOGRAPHY, supra note 158, at 60.
218. Pomeroy's ConstitutionalLaw, NATION, July 16, 1868, at 53, 54.
219. Id. at 54. Three years later, in an editorial opposing the Force Bill of 1871, the Nation looked at
the intent behind the Fourteenth Amendment. The unsigned article stated:
The comprehensive bill of rights contained in the first eight amendments applied to the action
of Congress alone, and did not control that of the States .... This was a great evil, and there
was danger lest it might become greater. To remedy it, the Fourteenth Amendment was adopted.
This was the sole design of that most just and beneficial change.
The Force Bill, NATION, Apr. 20, 1871, at 268, 270. Although the article was not signed, Howard J.
Graham claimed that Dean Pomeroy had written it. Howard J. Graham, Our "Declaratory" Fourteenth
Amendment, 7 STAN. L. REV. 3, 28 n.120 (1954).
220. FAIRMAN, supra note 44, at 297-98 (discussing Pomeroy's work on Justice Field's presidential
efforts).
221. See, e.g., Hyman, supra note 157, at 35. In particular, Pomeroy's views on incorporation would
have been relevant to Fairman's discussion in his second volume of Reconstruction and Reunion of one
of the first federal cases to interpret the Fourteenth Amendment as enforcing the Bill of Rights against the
states. FAIRMAN, RECONSTRUCTION II, supra note 5, at 188-93 (discussing United States v. Hall, 26 F. Cas.
79 (S.D. Ala. 1871) (No. 15,282)).
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Fairman published his second volume of Reconstructionand Reunion, Harold
Hyman and William Wiecek,222 Robert Kaczorowski, 22 and Michael Kent
Curtis had all discussed Pomeroy's relevance to the debate.224 Yet, Fairman's
analysis demonstrates no awareness of Pomeroy's views, their indication that
Bingham's views were not eccentric, nor their impact on the way people in
1868 viewed the Fourteenth Amendment.
4. Justice Cooley
In his Fourteenth Amendment writings, Fairman made only cursory
reference to the writings of Farrar, and none to the publications of Paschal and
Pomeroy. He relied primarily on a fourth scholar, Justice Thomas Cooley, to
support his claim that Bingham's contemporaries did not believe the Fourteenth
Amendment made the first eight amendments directly applicable to, and
enforceable against, the states. An evaluation of Justice Cooley's writings,
however, reveals that Cooley's positions-which varied over time-do not
provide contemporary support for Fairman's argument. In 1868, Cooley
published a constitutional law treatise in which he did not address the
Fourteenth Amendment at all. Three years later, his comments in a revised
edition of the treatise concerning the Amendment can be read to support
Bingham's interpretation of the Amendment's purpose. Only in 1873 and 1874
did Cooley reject that position after a misreading of Article IV, Section Two
and the text of the Amendment.
In his 1949 article, Fairman noted the "absence" of any reference to the
application of the Bill of Rights against the states in the first three editions of
Justice Cooley's Constitutional Limitations,22 implying that Cooley had
discussed the Fourteenth Amendment without referring to the Bill of Rights.
In fact, Justice Cooley made no reference at all to the Fourteenth Amendment
in his 1868 edition. 26 Although published in September, after both Congress
and the Secretary of State declared the Fourteenth Amendment ratified,227
Cooley never discussed the new Amendment. Thus, Cooley's view, at the time
of ratification, of the purpose of the Fourteenth Amendment is not available.
Cooley published his second edition of ConstitutionalLimitations in 1871.
This edition includes two statements which can be interpreted to suggest that
the Fourteenth Amendment applied the Bill of Rights to the states. After
222. HYMAN & ,VIECEK, supra note 102, at 409.
223. Robert J. Kaezorowski, Revolutionary Constitutionalism in the Era of the Civil War and
Reconstruction, 61 N.Y.U. L. REV. 863, 932 n.349 (1986).
224. CURTIS, supra note 24, at 172-73.
225. Fairman, supra note 1, at 116 n.306.
226. THOMAS COOLEY, CONSTITUTIONAL LIMITATIONS (1868) [hereinafter COOLEY 1868]. Fairman
cites no specific pages in his reference to the first edition of ConstitutionalLimitations.Fairman,supra note
1, at 116 n.306.
227. Fairman, supra note 1, at chart opposite 134.
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discussing the Citizenship Clause, Cooley wrote: "[I]t may be doubtful whether
the further provisions of the same section surround the citizen with any
protections additional to those before possessed under the State Constitutions;
but... a principle of State constitutional law has now been made a part of the
Constitution of the United States. 228 Cooley then stated that he considered
it "conceded" that privileges and immunities included the right to "protect and
defend" one's property "in the law" and the "enforcement of other personal
rights." 9 If Cooley viewed the federal Bill of Rights as protecting the same
rights as state constitutions or as offering protections which are characterized
as "personal rights, 230 then his 1871 Fourteenth Amendment views
contradict Fairman's and coincide with those of Bingham.
A century later, however, Fairman implied that Cooley in fact rejected
arguments supporting Bingham's view of the Fourteenth Amendment. Fairman
quoted Cooley out of context to suggest that Cooley disagreed with Justice
Bradley's opinion in the lower court decision of the Slaughter-House Cases.
As a synopsis of Cooley's position, Fairman wrote: "The matter was pending
before the Supreme Court and perhaps it was not proper to comment; but if the
claim were to be upheld, 'an innovation will be made in our system which
ought not to be made without careful consideration and deliberate intention.'
Evidently he did not approire. '' 23' Fairman suggested that Cooley disagreed
with the substance of the lower court opinion.
Read in context, however, the object of Justice Cooley's disapproval
becomes clear. Cooley objected to federal lower court review of state
legislation, believing that task belonged to the Supreme Court alone. Contrary
to Fairman's assertion, Cooley did not express any objection to Bradley's view
of the Fourteenth Amendment. Cooley wrote:
228. THOMAS COOLEY, CONSTITUTIONAL LIMITATIONS *294 (2ded. 1871) [hereinafter COOLEY 1871].
This statement may suggest that Cooley, like Pomeroy and Paschal, knew of no conflicts between the Bill
of Rights and state constitutional provisions.
229. COOLEY 1871, supra note 228, at 397.
230. The view that the federal Bill of Rights protects "personal rights" was widely shared. See COOLEY
1868, supra note 226, at 18 ("[Plrohibitions... designed for the protection of rights of persons or property
are usually repeated in the bills of rights contained in the state constitutions."). In 1849 abolitionist theorist
Joel Tiffany referred to the federal Bill of Rights as guarantees for "personal security and liberty." JOEL
TIFFANY, A TREATISE ON THE UNCONSTITUTIONALITY OF AMERICAN SLAVERY 99 (1849), quoted in Curtis,
supra note 24, at 72. Boyd v. United States, 116 U.S. 616 (1886), also referred to the Fourth and Fifth
Amendments as constitutional provisions "for the security of person and property." Id. at 635, cited in
Curtis, The Bill of Rights as a Limitation, supra note 24, at 72.
The Freedman's Bureau Bill provided for "full and equal benefit of all law and proceedings for the
security of person and estate, including the constitutional right of bearing arms." CONG. GLOBE, 39th Cong.,
1st Sess. 654, 743, 1292 (1866), quoted in CURTIS, supra note 24, at 72.
In an 1856 speech concerning the assault on Senator Charles Sumner and proposed expulsion of
Preston Brooks, Bingham stated that the freedom of speech and "security of person" were "great rights
which underlie and are essential to all representative Government." CONG. GLOBE, 34th Cong., Ist Sess.
1577 (July 9, 1856). He cited the Fourth Amendment as guaranteeing "security of person." Id. at 1578.
231. FAIRMAN, RECONSTRUCTION I, supra note 5, at 1368 (quoting COOLEY 1871, supra note 228,
at *574 n.3).
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93
State legislation in violation of the fourteenth amendment, or of any
other provision of the Constitution, if sustained by the State Court of
last resort, may be set aside by the federal Supreme Court on appeal,
as provided by the Judiciary Act of 1793; but when general original
jurisdictionto supervise or review State legislationshall be conferred
upon the federaljudiciary, an innovation will be made in our system
which ought not to be made without careful consideration and
deliberate intention. 2
Cooley published his third edition of ConstitutionalLimitations in 1874.
In this edition, he cited twice his fourth edition of Story on the
Constitution.? In Story, Cooley misparaphrased the Article IV, Section
Two's language, "the privileges of citizens in the several States," as "the
privileges of citizens of the several States." 4 Cooley then distinguished
between the privileges and immunities of state citizens and the privileges and
immunities of national citizens; he argued that the Fourteenth Amendment only
protected a limited number of rights such as international protection, use of
navigable waters and use of postal services. Cooley noted that state laws
continued to secure most protections of a citizen's privileges and
immunities.3 5 Thus, in contrast to Cooley's earlier work, his 1873 and 1874
works support Fairman's analysis rather than Bingham's position. 236 And it
was on this section that Professor Fairman relied for his 1971 volume
237
Reconstruction and Reunion.
Fairman's reliance on Cooley's 1873 and 1874 views is inconsistent with
his professed commitment to using contemporary evidence. After all, Fairman
rejected Bingham's 1871 speech indicating that the first eight amendments
were among the privileges and immunities of United States citizens,238
because Bingham gave this speech three years after the passage of the
232. COOLEY 1871, supra note 228, at *573-74 n.3 (emphasis added).
233. THOMAS M. COOLEY, CONSTITUTIONAL LIMITATIONS, *12, *573 n.3 (3d ed. 1874) [hereinafter
COOLEY 1874].
234. THOMAS M. COOLEY, 2 STORY ON THE CONSTTUTION 658 (4th ed. 1873) [hereinafter COOLEY,
STORY].
235. Id. at 658-59.
236. Id. Cooley specifically stated that the constitutional amendments relating to criminal trials applied
only to those charged with a crime by the federal government and not to those charged with a crime by
the states. Id. at 666.
In Story, Cooley defined life, liberty and property to include "every right to which a member of the
body politic is entitled under law." Id. at 668-69. Cooley then proceeded to discuss arbitrary arrests,
freedom of speech, and freedom of religion. Cooley's words were so expansive as to cause Robert
Kaczorowski to conclude that, in 1873, Cooley acknowledged that the Fourteenth Amendment's Due
Process Clause extended the Bill of Rights to the states. ROBERT J.KACZOROWSKI, THE NATIONALIZATION
OF CIVIL RIGHTS 289 (1987). Though Cooley's more specific words are a more reliable guide to his views,
the passages relied upon by Kaczorowski suggest that Cooley may not have fully considered the
implications of all that he said.
237. FAIRMAN, RECONSTRUCTION I, supra note 5, at 1368-69.
238. CONG. GLOBE, 42 Cong., 1st Sess. app. at 84 (Mar. 31, 1871).
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Amendment.239 Applying Fairman's own standard would mean that Cooley's
1873 and 1874 views should not be used to determine the purpose of the
Fourteenth Amendment. 240
Thus, of four authors writing at the time of the adoption of the Fourteenth
Amendment, three articulated a view of the Constitution that supported
Bingham's constitution l interpretation and his enforcement theory in
particular. A fourth writer, Justice Cooley, contrary to the suggestion of
Professor Fairman, did not provide a contemporary view of the Fourteenth
Amendment. Among those who discussed the Fourteenth Amendment for the
public and the bar, Bingham's views do not appear "singular," as Fairman
claimed. To the contrary, contemporaneous legal commentators almost
uniformly shared Bingham's conception that the Fourteenth Amendment
applied the Bill of Rights to the states.
IV. LOCAL CONFLICTS WITH THE BILL OF RIGHTS
Fairman's most credible argument that the Fourteenth Amendment did not
apply the Bill of Rights to the states rests on the conflict between state law,
both constitutional and statutory, and the requirements set forth in the Bill of
Rights.24 1 He suggests that congressmen and state legislators would not have
adopted the Fourteenth Amendment had they understood it to conflict with
local practices. At the very least, Fairman noted, they would have changed
local practices after ratification.242 This argument, while facially persuasive,
rests on faulty logic.
Bingham and the other members of Congress knew the contents of the
provisions of the Bill of Rights. Bingham also knew that he wanted the Bill
of Rights "enforced everywhere."243 But he and his contemporaries did not
239. Fairman, supra note 1, at 137 ("[Bingham] had a full opportunity to express his understandings
in 1868.").
240. Cooley was not the sole author of constitutional texts during early 1870's nor were his views
universally held. Another treatise, published the same year as the third edition of Cooley's Constitutional
Limitations, reached opposite conclusions. See ISRAEL W. ANDREWS, MANUAL OF THE CONSITrUTION
(1874). Andrews suggested that Section One of the Fourteenth Amendment was written explicitly to
counteract the view that the Bill of Rights did not apply to the states:
And as it has been maintained that the first eight Amendments had no reference to the State
governments, but were restraints upon the general government only, this Fourteenth Amendment
declares explicitly that 'No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.
Id. at 274.
241. Fairman, supra note 1, at 81-132. Fairman may have based his argument on the majority opinion
in Hurtado v. California, 110 U.S. 516, 537 (1883). The Hurtado Court, noting that Connecticut did not
require grand juries in capital cases at the time of the ratification of the Fourteenth Amendment, concluded
that a grand jury was required only in federal capital cases.
Crosskey suggests that many of these conflicts were more apparent than real. CROSSKEY, supra note
11, at 85-90. In his reply, Fairman did not specifically respond to that portion of Crosskey's analysis.
Fairman, A Reply to ProfessorCrosskey, supra note 11, at 144.
242. Fairman, supra note 1, at 82-84.
243. CONG. GLOBE, 39th Cong., 1st Sess. 1292 (Mar. 8, 1866).
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know the contents of every state statute and constitution. Indeed, Judge Paschal
evidenced no knowledge of state constitutional provisions that conflicted with
the Bill of Rights.2' Yet, Bingham, Farrar, and Paschal all believed that the
Bill of Rights already applied to the states and that local officials who enforced
local laws in conflict with the Bill of Rights were violating their oaths of
office. They believed the Fourteenth Amendment created an enforcement
mechanism that would authoritatively resolve any conflict. 24 5 They favored
the principles of the Bill of Rights over the preservation of unconstitutional
local practices. In 1866, Bingham told Congress "that many of the States-I
might say, in some sense, all the States of the Union-have flagrantly violated
the absolute guarantees of the Constitution of the United States to all its
2 46
citizens.
In his last major speech in the House before the vote on the Fourteenth
Amendment, Bingham stated that "many of [the states] ha[d] assumed and
exercised the power" to violate the privileges and immunities of U.S.
citizens.247 Four years later, Bingham welcomed the adoption of the Fifteenth
Amendment and its enforcement provisions to overcome Ohio's prohibition of
voting rights for African Americans. 24 No evidence suggests that Bingham
was less willing for the Fourteenth Amendment to overrule state practices
contrary to the Bill of Rights.
Fairman's own research demonstrates the error of his conclusion that
conflicts between local provisions and the federal Bill of Rights indicate that
the Fourteenth Amendment did not enforce the Bill of Rights against the states.
For instance, Fairman noted that Senator Howard, the spokesman for the
Fourteenth Amendment in the Senate, had concluded that the Fourteenth
Amendment's Privileges or Immunities Clause encompassed the first eight
amendments.249 Fairman also noted that Howard had been Attorney General
of Michigan when the Michigan legislature enacted a statute that allowed
criminal cases to be initiated without indictment by the grand jury as required
by the Fifth Amendment. 250 If Howard knew of this conflict, then he likely
believed that, if ratified, the Fourteenth Amendment would render the
244. See PASCHAL 1868, supra note 173, at 290. For the possibility that Cooley also thought there
were no conflicts, see supra note 228 and accompanying text.
245. Radical Republicans advocated that "all state constitutions [should] accord with the central one."
NOVEMBER 26, 1868, SERMON OF REV. ALEXANDER CLARK, in THE RADICAL REPUBLICANS AND
RECONSTRUCTION, 1861-1870, supra note 129, at 464. Even if they agreed with Pomeroy, who recognized
the legitimacy of state practices contrary to the Fifth, Sixth, and Seventh Amendments, they could
nevertheless have taken Pomeroy's position that the Fourteenth Amendment should be adopted to overcome
these state practices. POMEROY 1868, supra note 203, at 148-49.
246. CONG. GLOBE, 39th Cong., 1st Sess. 158 (Jan. 9, 1866).
247. CONG. GLOBE, 39th Cong., 1st Sess. 2542 (May 10, 1866), quoted in Fairman, supra note 1, at
51.
248. CONG. GLOBE, 41st Cong., 2d Sess. 3503 (May 10, 1870).
249. Fairman, supra note 1, at 57 (referring to,but not citing CONG. GLOBE, 39th Cong., IstSess.
2765 (May 23, 1866)).
250. Fairman, supra note 1, at 115-16.
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Michigan statute unconstitutional. If, however, he was unaware of the conflict,
then its existence cannot have affected his understanding of the Amendment's
purpose.
A similar analysis applies to the state legislatures. Fairman pointed out that
Bingham specifically identified Oregon as one of the states whose constitution
or statutes violated the U.S. Constitution and whose violations could be
addressed by one of the early proposed versions of the Fourteenth
Amendment. 1 The offending provision of the Oregon Constitution, which
discriminated against African Americans, was not repealed until November 2,
1926.2 Nevertheless, Fairman indicated that the Republican majority in the
state legislature voted to adopt the Fourteenth Amendment. 3 The
Republican majority did so even though the state constitution violated the
Equal Protection Clause-a portion of the Fourteenth Amendment that
explicitly applied against the state regardless whether Section One also
incorporated the Bill of Rights.
Thus, Fairman's examples do not support his conclusion. Jurists and
scholars like Judge Paschal perceived no conflict between state constitutional,
on the one hand, and the Bill of Rights on the other. To the extent that such
conflicts did exist, the intent of the Fourteenth Amendment was to resolve the
conflicts by enforcing the Bill of Rights. Fairman's examples, Senator Howard
and the statutory provision of Michigan, in fact indicate that such conflicts
provide no assistance in interpreting the Amendment. His Oregon example
indicates that even when a specific conflict between the Fourteenth
Amendment and a state constitutional provision existed, states nevertheless
took the seemingly inconsistent action of ratifying the Amendment and failing
to repeal the offending state provision.
V. INIAL JUDICIAL INTERPRETATIONS
Notwithstanding Fairman's assertions to the contrary, Bingham was a
respected lawyer and congressman; his reasoning was cogent and consistent;
and his view that the Fourteenth Amendment applied the Bill of Rights to the
states was widely shared by contemporary politicians and legal scholars. An
analysis of the initial judicial interpretations concerning the Fourteenth
Amendment reveals that several judges also believed that the Fourteenth
Amendment applied the Bill of Rights against the states. This Section will
251. Fairman, supra note 1, at 31-32 (citing CONG. GLoBE, 39th Cong., Ist Sess. 1065 (1865) and
quoting Bingham's statement that the Fourteenth Amendment "is to apply to other States also that have in
their constitutions and laws to-day provisions in direct violation of every principle of our Constitution....
It applies unquestionably to the State of Oregon.").
252. Fairman, supra note 1, at 32 n.58.
253. Id. at 89.
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show that subsequent opinions reaching the opposite conclusion repudiated
rather than expressed the intent of the Fourteenth Amendment's framers.
The Fourteenth Amendment was declared ratified on July 28, 1868.4
Nearly two years passed before a federal circuit court interpreted the
Fourteenth Amendment for the first time. In the Slaughter-House Cases,2 5
decided on June 10, 1870, the court concluded that the Fourteenth Amendment
guaranteed not only equality of privileges or immunities, but also "that the
privileges and immunities of all citizens shall be absolutely unabridged,
unimpaired. 'as' 6 In particular, Justice Bradley, in his capacity as Circuit
Justice, concluded that the privileges of the Fourteenth Amendment included
the right to pursue a lawful occupation without interference by "odious
' 7 The Court considered whether the law granting the
monopolies. ' as
monopoly conflicted with a "fundamental privilege" or was a permissible
police regulation. It held that police regulations "cannot [interfere with liberty
of conscience, nor with the entire equality of all creeds and religions before the
law. Nor can they] ... interfere with the fundamental privileges and
immunities of American citizens. '' 58 Justice Bradley thereby articulated a
theory of the Fourteenth Amendment consistent with Bingham's own: the new
Amendment enforced the Bill of Rights against the states through the
Privileges or Immunities Clause.
On March 12, 1871, Justice Bradley reiterated this position in a letter to
Circuit Judge and future Supreme Court Justice, William Woods. Judge Woods
had written to Justice Bradley for advice in deciding United States v. Hall,5 9
the second federal case to interpret the Fourteenth Amendment. Justice Bradley
replied that fundamental rights such as speech and assembly were privileges
or immunities of national citizenship under the Fourteenth Amendment.2 60
Judge Woods adopted Bradley's interpretation.
Judge Woods stated that, "Before the fourteenth amendment, congress
could not impair [the rights contained in the first eight amendments], but the
states might. Since the fourteenth amendment, the bulwarks about these rights
254. 15 Stat. 708-11 (1868).
255. Live-Stock Dealers' & Butchers' Ass'n v. Crescent City Live-Stock Landing & Slaughter-House
Co., 15 F Cas. 649 (C.C.D. La. 1870) (No. 8,408) (opinion of Bradley and Woods, JJ.). Fairman discussed
this case, but did not acknowledge that it supported Bingham's theory of the Fourteenth Amendment.
FAIRMAN, RECONSTRUCTION I, supra note 5, at 1331-35, 1362-63. Fairman never labeled the views of
Justice Bradley or Judge Woods "peculiar" or "singular" even though they were the same as those
articulated by John Bingham.
256. 15 F. Cas. at 652.
257. Id.
258. Id. at 653 (bracketed portion, citing 3 Chi. Legal News 17, in original). Judge Woods reported
his published opinions in volumes known as Woods' Cases but omitted the bracketed language from that
report. FAIRMAN, RECONSTRUCTION I, supra note 5, at 1333 n.98.
259. 26 F. Cas. 79 (S.D. Ala. 1871) (No. 15,282). For an account of the correspondence, see Bell v.
Maryland, 378 U.S. 226, 310 n.31 (1964) (Goldberg, J., concurring); John P. Roche, Civil Liberty in the
Age of Enterprise,31 U. CHI. L. REv. 103, 108-09 (1963).
260. Roche, supra note 259, at 109 (citing letter from Bradley to Woods (draft), Washington, D.C.,
March 12, 1871).
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have been strengthened, and now the states are positively inhibited from
impairing or abridging them ....2 6' The court specifically stated that "the
right of freedom of speech, and the other rights enumerated in the first eight
articles of amendment to the constitution of the United States, are the
privileges and immunities of citizens of the United States ...secured by the
constitution."262
Two of the first federal prosecutions in 1871 under the Enforcement Act
of 1870263 provide support for the view that the Fourteenth Amendment
applied the Bill of Rights to the states. At issue was whether the Second
Amendment's right to bear arms in one's home could be enforced against
private individuals. The local U.S. Attorney, the Attorney General of the
United States, and the grand jury returning the indictments thought they could.
As Robert Kaczorowski noted, even defense counsel, former Attorney
General Henry Stanberry and Fourteenth Amendment opponent Senator
Reverdy Johnson, agreed that the privileges and immunities protected by the
Fourteenth Amendment included the right to keep and bear arms.264 They
simply argued that those protections applied only to state actors and did not
allow the federal government to take action against private parties. This
defense is consistent with John Bingham's position.
A year later, the Supreme Court reversed the lower court opinion in the
Slaughter-House Cases by a five to four vote. 265 The Slaughter-House
plaintiffs submitted portions of Bingham's congressional speeches, along with
261. 26 F. Cas. at 81 (emphasis added).
262. Id. at 82 (emphasis added); 26 F. Cas. 1147 (S.D. Ala. 1871) (No. 15,712). The same court may
have reached a like result in United States v. Mall decided the same year. Mall is reported only in summary
form and a striking similarity exists between the facts and holdings in Hall and Mall. Fairman concluded
that these are the same case with a misspelling of "Hall" as "Mall." Others have treated these cases as two
distinct cases. E.g., Screws v. United States, 325 U.S. 91, 125 n.22 (1945); HYMAN & WiECEK, supra note
102, at 436 n.90; KACZOROWSKI, THE POLITICS OF INTERPRErATION, supra note 136, at 23 n.25; Michael
Collins, "Economics Rights," Implied ConstitutionalActions, and the Scope of Section 1983, 77 GEo. L.J.
1493, 1558 n.323 (1589).
263. 16 Stat. 140 (1870). KACZOROWSKI, THE POLITICS OF INTERPRETATION, supra note 136, at
122-32. These cases were United States v. Avery, 80 U.S. (13 Wall.) 251 (1871) (no jurisdiction), and
United States v. Mitchell, 26 F. Cas. 1283 (C.C.D.S.C. 1871) (No. 15,790) (conspiracy to deprive right to
vote).
264. KACZOROWSKi, THE POLITICS OF INTERPRETATION, supra note 136, at 129.
265. 83 U.S. (16 Wall.) 36 (1872). Justice Miller's distinction between the rights of state citizens and
federal citizens is based upon the Citizenship Clause. However, the Citizenship Clause was not part of the
original Amendment as proposed by Bingham, the Joint Committee, or the House. It was added by the
Senate. FAIRMAN, RECONSTRUCTION I, supra note 5, at 1296. Eric Foner suggests that anyone who read
the congressional debates would have "seriously doubted" the citizenship distinction articulated by Miller.
FONER, supra note 138, at 530. In determining that there was a difference between the rights of a person
as a citizen of a state and of that same person as a citizen of the United States, Justice Miller also alluded
to Article IV, Section 2: "Mhe Fourteenth Amendment] speaks only of privileges and immunities of
citizens of the United States, and does not speak of those of citizens of the several states." 83 U.S. at 74.
In paraphrasing Article IV, Section 2, Justice Miller converted the reference from privileges and
immunities "of citizens in the several states" to "of citizens of the several states." He thus committed the
error of misreading Article IV, Section 2 in the way against which Bingham had warned in 1859. See supra
note 67 and accompanying text. If one reads Article IV, Section 2 as Bingham read it, much of the textual
argument upon which Justice Miller based his opinion cannot stand.
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those of other members of Congress, in their brief to the Court.266 The Court,
however, did not refer to the debates on the Amendment or the ratification
process. Instead, it relied on its own view of the purpose of the
Amendment.267 The Court held that the right to pursue a lawful occupation
without restraint by a state-granted monopoly was not a privilege or immunity
of national citizenship. Still, the precise question of whether the Privileges or
Immunities Clause incorporated the Bill of Rights was not before the Court
and remained unclear.268 At least two senators, though, who voted for the
Fourteenth Amendment rejected Justice Miller's interpretation.269
Four years after the Slaughter-House Cases, the Supreme Court
specifically rejected the interpretation of the Fourteenth Amendment initially
articulated by the lower federal courts. In United States v. Cruikshank,2 0 the
Court, in an opinion by Justice Waite, held that the Fourteenth Amendment did
not apply the Bill of Rights to the states. 27' This was a repudiation of
original intent rather than an attempt to apply it.
Indeed, many contemporary observers of the Court's decisions agreed with
this assessment. 22 In 1876, Senator Oliver Morton suggested that the
Supreme Court had distorted the intent of the Fourteenth Amendment: "The
fourteenth and fifteenth amendments which we supposed broad, ample, and
specific, have, I fear, been very much impaired by construction, and one of
266. See 6 LANDMARK BRIEFS AND ARGUMENTS, 695, 696, 708-09, 712, 713-14 (Philip B. Kurland
& Gerhald Casper eds., 1975).
267. 83 U.S. (16 Wall.) at 68.
268. Historians continue to disagree about whether Justice Miller's opinion contemplated the
application of the Bill of Rights to the States. CompareDONALD G. NIEMAN, PROMISES TO KEEP: AFRICAN
AMERICANS AND THE CONSTITUTIONAL ORDER, 1776 TO THE PRESENT 94 (1991) (Bill of Rights not
applied to states) with 1 ALFRED H. KELLY ET. AL., THE AMERICAN CONSTITUTION, ITS ORIGINS AND
DEVELOPMENT, VOLUME n 356 (7th ed. 1991) (Bill of Rights did apply); see also JOHN H. ELY,
DEMOCRACY AND DISTRUST 196 n.59 (1980) (noting "at least the possibility that all nine justices" felt the
post-Civil War constitutional changes made all the Bill of Rights guarantees applicable to the states). See
generally Robert C. Palmer, The Parameters of Constitutional Reconstruction: Slaughter-House,
Cruikshank, and the FourteenthAmendment, 1984 U. ILL. L. REv. 739, 739, n.2.
269. George F. Edmunds indicated that Justice Miller's decision was "radically" different from "the
intent of the Framers and the construction of the language used by them." PALUDAN, supra note 213, at
236 (citing 2 CHARLES WARREN, THE SUPREME COuRr INUNITED STATES HISTORY, 1836-1918, at 541
(1928)). Senator Timothy Howe compared Justice Miller's opinion to Dred Scott v. Sandford, 60 U.S. (19
How.) 393 (1857), and proclaimed that the American people would say that "it was not law and could not
be law." HOWARD N. MEYER, THE AMENDMENT THAT REFUSED To DIE 77 (rev. ed. 1978).
270. 92 U.S. (2 Otto) 542 (1876).
271. Waite's political background helps explain his opinion in Cruikshank.While he argued against
slavery, supported the Union war effort, and endorsed Lincoln's Emancipation Proclamation, there is no
indication he actively supported the passage of the Fourteenth Amendment. See C. PETER MAGRATH,
MORRIS R. WAITE: THE TRIUMPH OF CHARACTER (1963); BRUCE R. TRIMBLE, CHIEF JUSTICE WAITE:
DEFENDER OF THE PUBLIC INTEREST (1938). In 1862 Waite split the Republican (Union) congressional
ticket by running as a conservative "Independent Republican" candidate against a two-term incumbent
abolitionist and "regular" Republican nominee, James Ashley. REPUBLICAN PARTY OF OHIO, supra note
106, at 151. Ashley defeated Waite and his Democratic opponent with the help of John Bingham, who
personally canvassed the Toledo district on Ashley's behalf. GRACE J. CLARKE, GEORGE V. JULIAN 247
(1923).
272. WILLIAM M. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION 164 (1972).
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them in some respects almost destroyed by construction." 273 Similarly, in
1886 former Congressman and U.S. Senator James Blaine lamented that as a
result of Supreme Court decisions:
[T]he Fourteenth Amendment has been deprived in part of the power
which Congress no doubt intended to impart to it....
Undoubtedly a large proportion of the members of the Congress,
while following the lead of those who constructed the Fourteenth
Amendment, sincerely believed that it possessed a far greater scope
than judicial inquiry and decision have left to it.274
At the Supreme Court Memorial Service for Chief Justice Waite in 1888,
Ohio Congressman Samuel Shellabarger noted that Justice Waite's decision in
United States v. Cruikshank2 75 contravened the intent of the framers of the
Fourteenth Amendment:2 76 "[M]any of the framers of these Amendments
received information regarding their intentions which was new, and was not
calculated to allay the apprehensions with which they saw Chief Justice Waite
go upon the bench.' 277 Shellabarger said that historians would later praise
Waite primarily because "the lapse of years has matured men's views and
cooled their feelings regarding the results of the late war." 78 Like many
others, Congressman Shellabarger was content with the Court's failure to
enforce the "original" intent.
Three -years later, Justice Brewer noted that "many of those who wrought
into the Constitution the Fourteenth Amendment believed that they were
placing therein a national guarantee against future State invasion of private
rights, but judicial decisions have shorn it of strength, and left it nothing but
a figure of speech." 279
Bruce R. Trimble, a biographer of Justice Waite, later noted "[t]he radical
plan to protect the Negro by subjection of the states was thus 'demolished' by
Waite and his associates .... Instead of getting a John Marshall [the Senators]
had more nearly obtained a Roger B. Taney." ' According to Trimble,
273. 4 CONG. REC. 5585 (1876).
274. 2 JAMES G. BLAINE, TWENTY YEARS OF CONGRESS 419 (1886) (emphasis added).
275. 92 U.S. 542 (1876).
276. Appendix, In Memoriam, Morrison Remick Waite, LLD., 126 U.S. 585 (1888).
277. Id. at 600.
278. Id. at 600-01. So too, Hampton Carson, in his history of the Supreme Court, wrote:
But now, after the lapse of years, when the temper and spirit in which the text of the Amendments
was penned have cooled, and the views of men have matured, it is seen on a survey of all the
decisions considered as a body, that the value of the Court as the great conservative department of
the government was never greater than then.
2 HAMPTON L. CARSON, HISTORY OF THE SUPREME COURT 485-86 (1891). Waite was also cited with
approval in WARREN, supra note 269, at 616-17.
279. HON. DJ. BREWER, PROTECTION OF PRIVATE PROPERTY FROM PUBLIC ATTACK, AN ADDRESS
DELIVERED BEFORE THE GRADUATING CLASSES AT THE SIXTY-SEVENTH ANNIVERSARY OF YALE LAW
SCHOOL 22 (June 23, 1891).
280. TRIMBLE, supra note 271, at 167. Though one may read this statement more expansively, Trimble
undoubtedly meant to imply only that like Taney, and unlike Marshall, Waite read national powers
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101
Cruikshank and the Slaughter-House Cases "marked the overthrow of the
within seven years after the adoption of
congressional plan of reconstruction
28 '
Amendment."
Fourteenth
the
Justice Moody noted that "[u]ndoubtedly, [the Slaughter-House Cases]
gave much less effect to the Fourteenth Amendment than some of the public
men active in framing it intended, and disappointed many others. 2 8 2 In 1926,
Charles Warren, who approved of the Supreme Court's retreat from enforcing
the Thirteenth and Fourteenth Amendments,283 noted that Justice Miller's
opinion in the Slaughter-House Cases was "a tremendous shock and
disappointment" to "the radical Reconstructionists," because "their intent in
contrary to the narrow
framing the language of the Amendment was directly
284
construction now placed upon it by the Court.
Warren stated "the course of the decisions of the Court had been, with
very little variation, to controvert the purpose of the Amendment, to belittle its
effect, to magnify the police power and to give it an excessively wide
range., 28 5 Indeed, it appears that works approving the Court's restrictive
interpretation of the Fourteenth Amendment before 1949 admitted, at least
implicitly, that such decisions were contrary to the original intent of the
framers of the Amendment. 286 Fairman appears to have been the first scholar
to argue that the holdings in these cases and the intent of the framers were, in
fact, consistent.
To do so, Fairman had to reconcile the apparent inconsistency among
Justice Bradley's various writings. In the circuit opinion in the SlaughterHouse Cases, his letter to Judge Woods in the Hall case, and his dissent to the
Supreme Court's decision in the Slaughter-HouseCases, Bradley supported the
narrowly.
281. Id. at 172.
282. Twining v. New Jersey, 211 U.S. 78, 96 (1908).
283. Warren, though unwilling to pronounce the decisions of the Supreme Court correct, was willing
to characterize them as "most fortunate." WARREN, supra note 269, at 608. This was so, in his view,
because "[tihey largely eliminated from National politics the negro question which had so long embittered
Congressional debates; they relegated the burden and the duty of protecting the negro to the States, to
whom they properly belonged; and they served to restore confidence in the National Court in the Southern
States." Id.
When using the terms "the Southern States" Warren obviously referred to white supremacists and did
not include millions of African Americans and white Republicans who had an equal claim to be called
Southerners. Cf. Richard L. Aynes, Correspondence, I GA. J. Soc. LEGAL HIST. 499-501 (1991) (making
same criticism about Prof. Forrest McDonald).
284. WARREN, supra note 269, at 539; see also BURGESS, supra note 204, at 228 (Slaughter-House
Cases were contrary to intent of Framers and "entirely erroneous").
285. WARREN, supra note 269, at 567 (footnote omitted).
286. See, e.g., CHARLES W. COLLINS, THE FOURTEENTH AMENDMENT AND THE STATES 15 (1912).
Collins, who felt little sympathy for the Fourteenth Amendment framers, concluded that the "majority of
the United States Supreme Court in interpreting [the Fourteenth] amendment followed, in effect, the
reasoning of the Democratic opposition, and refused to give effect to the ideas of the Radical Republicans."
Id. at 15. D.O. McGovney, Privileges or Immunities Clause-FourteenthAmendment, 4 IOwA L. BULL.
219, 219 (1918) (Supreme Court interpretation renders Privileges and Immunities Clause a narrower form
of Article IV, Section 2 and "completely disappointed the avowed purposes of some of its framers").
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view that the Fourteenth Amendment was designed to enforce the Bill of
Rights against the states. Yet, Justice Bradley joined the majority in
Cruikshank, apparently abandoning his earlier views and finding the Bill of
Rights was not enforceable against the states through the Fourteenth
Amendment.
Fairman attempted to explain this inconsistency by relying upon Bradley's
statement that his changed views resulted from a continuing search for
truth;2 87 less admiring readers viewed this change as evidence that Bradley
followed the "drift" of the nation away from the commitment to enforce the
Fourteenth Amendment in the face of the racial violence of the 1870's.288
Ruth Whiteside found evidence of the erosion of the guarantees of the
Fourteenth Amendment to be "increasingly evident by 1873. "289 According
to Whiteside, by 1874, Bradley had "begun to mirror the national mood. 290
Whiteside found "no single explanation for Bradley's increasing reticence," but
thought that "[t]he key lay in the nature of Bradley's commitment to the
Union., 291 Whiteside found that Bradley gave a higher priority to "national
reconciliation" among whites than to the rights of African Americans.292
Justice Bradley "gradually began to back away from his early
commitments to civil rights guarantees. 29 3 Regarding Bradley's 1883
opinion in the Civil Rights Cases,294 Whiteside concluded, in words equally
applicable to his action in joining the Cruikshank
majority, that "Bradley...
' 295
piece.
period
a
was
His
moment.
the
spoke to
Bradley's change of heart reflected a broader social change, and not a
discovery of the true intent of the framers of the Fourteenth Amendment. He
never identified new debates, acknowledged errors of logic, nor discussed
intervening cases that could serve as a principled basis for his change of
opinion.
The Supreme Court's decisions in the Slaughter-House Cases and
Cruikshank reflected the changed political climate and the retreat from
Reconstruction idealism. But it was Hall and the lower court decision in the
Slaughter-House Cases which best illustrate the judiciary's initial view of the
true purpose of the Fourteenth Amendment. And that purpose was the one
287. FAIRMAN, RECONSTRUCTION I, supra note 5,at 1379 n.211.
288. See, e.g., HYMAN, A MORE PERFECT UNION, supra note 190, at 415-16 ("Americans did not
welcome actually doing what their constitutional law... said they should do."), 524 (noting that by 1870,
the nation "wanted stability and peace, not innovation").
289. Ruth Whiteside, Justice Joseph Bradley and the Reconstruction Amendments 182 (1981)
(unpublished Ph.D. thesis, Rice University).
290. Id. at 201.
291. Id. at 230.
292. Whiteside, supra note 289, at 230. Chief Judge Waite held sentiments similar to those of Bradley.
MAGRATH, supra note 271, at 153. Cf.DERRICK A. BELL, JR., RACE, RACISM, AND AMERICAN LAW 29-30
(1980) (discussing "principle of involuntary sacrifice").
293. Whiteside, supra note 289, at 190.
294. 109 U.S. 3 (1883).
295. Whiteside, supra note 289, at 283.
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John Bingham had repeatedly espoused: to enforce the Bill of Rights against
the states.
VI. CONCLUSION
Fairman's analysis has caused many scholars and jurists to discount John
Bingham's view of the Fourteenth Amendment. But a fair examination of the
evidence reveals that Bingham held a cogent theory and clearly expressed his
intent that the Privileges or Immunities Clause of the Fourteenth Amendment
include the Bill of Rights.
Although Bingham had his critics, his colleagues in the House of
Representatives and the leaders of his party respected him and frequently
commended his reasoning ability. Moreover, Bingham's view that the
Privileges or Immunities Clause of the Fourteenth Amendment applied the Bill
of Rights to the states was not "singular." Many of his contemporaries shared
this view, including three highly-regarded legal treatise writers. The first
federal courts to apply the Fourteenth Amendment decided cases consistently
with Bingham's position. In fact, as Michael Kent Curtis found, no
contemporary source explicitly denied the contention of Bingham and his allies
that the Fourteenth Amendment would enforce the Bill of Rights against the
states. 2 96 Immediately after Senator Howard's speech in the Senate stating
that the Bill of Rights constituted a major portion of Fourteenth Amendment
privileges and immunities, the Chicago Tribune reported that the caucus of
Union Republican Senators agreed to limit debate on the Fourteenth
Amendment. This action was taken because the Amendment had "already
[been] thoroughly discussed and understood." 297 Likewise, Governor Reuben
E. Fenton of New York urged speedy ratification of the Amendment insisting
2 98
that its provisions "are understood, appreciated and approved.
Recognition of Bingham's constitutional theory as providing the correct
reading of the Privileges or Immunities Clause of the Fourteenth Amendment
leads to several important changes in the current constitutional landscape. First,
this recognition suggests that in an appropriate case, the Supreme Court should
either hold that the Slaughter-House Cases did not nullify the Privileges or
Immunities Clause or, if it did, should overrule the decision. As a result, the
protections of the portions of the Bill of Rights not yet incorporated under the
Due Process Clause 99 should be enforced against the states. The Court
296. CURTIS, supra note 24, at 91 ("not a single senatoror congressman,contradicted them").
297. Status of the Reconstruction Report, CHI.TRIB., June 1, 1866, at 2.
298. JOSEPH JAMES, THE RATIFICATION OF THE FOURTEENTH AMENDMENT 160 (1984).
299. These provisions are the Second Amendment, the Third Amendment, Fifth Amendment grand
jury requirement, the Seventh Amendment, and the Eighth Amendment excessive fines and bail clause.
ermiel, supra note 24, at 129. As a result, the entire Bill of Rights would apply to citizens through the
Privileges and Immunities Clause, but not to aliens. John Ely suggested that "the reference to citizens may
define the class of rights rather than limit the class of beneficiaries." ELY, supra note 268, at 25. If so, he
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should also overrule decisions which have given an amendment one meaning
in the federal system and another when applied to the states. 3 °
Finally, John Bingham, the 39th Congress, the ratifying legislatures, and
antislavery theorists never suggested that the privileges or immunities of U.S.
citizens were confined to the rights recognized in the first eight amendments.
Rather, they viewed the Bill of Rights as defining some of these privileges and
immunities and anticipated the enforcement of additional privileges or
immunities, such as the privilege of protection against the states through the
writ of habeas corpus.30 '
Discovering the identity of these "other" protections, and how they can be
defined and protected, is a worthy challenge. But it is a challenge which
cannot begin properly without an adequate and correct reading of the ideas of
John Bingham concerning the Fourteenth Amendment.
argues the rights protected by the Privilege or Immunities Clause would extend to aliens and be more
consistent with the "purpose" of the Amendment. This argument regarding the "purpose" of the
Amendment, however, is not supported by the congressional debates on the Amendment.
300. See Apodaca v. Oregon, 406 U.S. 404 (1972) (no Sixth Amendment requirement of unanimous
jury for felony conviction in state court, unlike federal court); Johnson v. Louisiana, 406 U.S. 356 (1972)
(same conclusion under Due Process and Equal Protection analysis).
301. Amar, supra note 25, at 1228.
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